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How to Handle Real Estate, the Marital Home in Divorce

A marital home can be problematic in a divorce proceeding. There may be an issue as to who purchased the improved residential real estate and if it was transferred to both spouses prior to the dissolution of marriage being filed.

There may be an issue as to who may or may not be listed on the note and mortgage, with regard to the marital residence.

There may be an issue as to who is entitled to interest deductions in regard to payments made and there may be an issue in regard to who has been making house payments from the date of purchase, to the date of marriage, to the date of divorce.

There may also be an issue in regard to real estate taxes and insurance and whether or not same or part of any monthly payment is being made by one or both spouses.

There could be a situation where both parties wish to sell the home. If so, there may be an issue, if the home is not sold prior to the divorce and if the home is continued to be owned after the divorce, in regard to who is responsible for making payments and what agreement can be reached, if any, between the parties with regard to net sales proceeds when the home may eventually sell.

There may be an issue as to who is entitled to take any interest deductions or real estate taxes as expenses on their tax returns, in regard to the marital home.

There should be a check list at the inception of the engagement in regard to relevant issues and that check list can be reviewed from time to time and used as a basis in a properly drawn Marital Settlement Agreement which can be incorporated into a Judgment of Dissolution of Marriage.

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In Illinois, alimony is awarded without regard to marital misconduct. According to Illinois divorce law, the judge orders support from one spouse to the other if the parties cannot agree. The court awards alimony in a lump sum or for a fixed or indefinite period of time. The alimony may be paid from the income or property of the other spouse after considering all relevant factors, including the income and assets of each spouse, the needs of each party, the earning capacity of each party, any impairment of the earning capacity of the party seeking alimony caused by marital sacrifices, the time necessary for the receiving party to seek employment, the standard of living established while married, the length of the marriage, the age and health of both parties, and the contributions and services by the party seeking maintenance to the education or career potential of the other spouse.
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