What happens if both spouses want to keep 100% of the same marital property?

By Sean Sullivan
May 20, 2016

In real life both spouses cannot keep possession of the same marital property. The law views it as there's two rights to property in a sense. There is the physical possession of the items such as a home, and then there is the property value, which is the cash value or the fair market value of the home.

Obviously it's impossible for both parties to retain both. In a situation in which both spouses wanted to keep the house, most likely the judge would probably rule that that's not possible, and then the house should be sold. If the parties still can't come to an agreement on how to sell the house, and one party is absolutely adamant that he or she wants to stay in the house over the other party, then that would be up to that other party to express it to his or her lawyer and have them negotiate it out. But in that sense, one party would be given the physical possession of the house, but then they would have to account to the other spouse the property value of the house and the equitable interest that that spouse would have in the house. So, the person would have to be accounted monetarily for the value of the house.

Sean Sullivan is a family lawyer practicing in the Elmhurst, Illinois area at the law offices of Laura M Urbik Kern, specializing in child custody and dissolution in divorce. Visit his website, www.laurakern.com, and Divorce Magazine profile.

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May 20, 2016
Categories:  Financial Issues|FAQs

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