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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.
When the parties cannot reach an agreement on property division, the Illinois court will divide all the property and debts for them equitably. When a property settlement is finally reached, it must be in writing and signed by both parties.
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