What factors will the judge take into consideration when determining which spouse will keep the marital home after divorce?

By Chuck Roberts
October 04, 2016

There are a couple of things that the court is going to take into account. One of the issues that the judge is going to want to be appraised of is, what’s the situation with the children of the marriage? Are there children, and if so, are they of school age? How many more years do they have to go before they graduate from high school? Are there particular needs that the kids have that are met by the school district that they presently live in? Is it important and in the best interest of the children to keep them in the existing school district, or is it a situation where the children might be able to easily relocate and not face any particular adverse consequences from a relocation?

The court wants to know about the liquidity of the estate. Is there enough money in the estate to pay the spouse who’s going to give up their rights in the house for their interest? Does the spouse who might take the house have the ability to refinance any debt that’s secured by the property? It wouldn’t necessarily be fair to the party who’s giving up their interest in the house if they’re going to be liable on the mortgage for many years to come. It might mean that they’re unable to buy a new residence. There are a lot of factors that the court has to consider in its determination of what to do with the house, if it’s otherwise unable to make an appropriate determination and make a determination that’s fair to both parties and the children. Sometimes the court orders that the home be sold. We see all different kinds of outcomes on that issue. It’s really fact-specific and case determinative.

Chuck Roberts is a family lawyer at Momkus McCluskey Roberts, LLC, one of the largest law firms in DuPage County, Illinois.

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October 04, 2016
Categories:  FAQs

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