Selling the Marital Home in an Illinois Divorce

What You Need to Know About Dividing Real Estate During Divorce in Chicago and Cook County

For many divorcing couples in Illinois, the marital home is more than just a piece of real estate—it represents years of investment, memories, and financial stability. As one of the most significant assets in a divorce, determining what happens to the house can shape the outcome of your entire property settlement. Will it be sold and the proceeds divided? Can one spouse keep the home? What happens to the mortgage?

These are the kinds of questions we answer every day at Chicago Family Attorneys, LLC. Serving clients throughout Chicago, Cook County, and nearby counties, we guide individuals through the legal and practical steps of selling or transferring the marital home with a focus on protecting their rights and long-term interests.

In this comprehensive guide, we walk you through what to expect, from identifying whether the home is marital property, to getting it valued properly, to negotiating buyouts and refinancing terms. Whether early in the divorce process or nearing a settlement, understanding your options now can help you make informed decisions that support your financial and emotional well-being.

Is the Home Marital Property? Understanding Ownership in Illinois Divorce Cases

Before deciding whether to sell the marital home, transfer ownership, or negotiate a buyout, the first step in any Illinois divorce is to determine whether the property is considered marital or non-marital. This classification has a direct impact on how the home will be treated in the divorce settlement or by the court.

Under 750 ILCS 5/503 of the Illinois Marriage and Dissolution of Marriage Act, marital property includes most assets acquired by either spouse during the marriage. This typically means that if the home was purchased after the wedding, regardless of whose name is on the deed, it is presumed to be marital property and subject to equitable division during divorce proceedings.

Common Questions We Hear from Clients:

• "Is my house considered marital property if I bought it before we got married?"If you purchased the home before the marriage, it may be classified as non-marital. However, this gets complicated if marital funds were later used for mortgage payments, major renovations, or refinancing. In such cases, your spouse may have a claim to a portion of the home's value due to commingling or marital contributions.

  
  

• "What happens if only one spouse is on the title?"Title ownership doesn’t necessarily control. Even if the deed is in only one spouse’s name, Illinois courts look at how the property was acquired and maintained. If it was purchased during the marriage or paid for using marital income, it's likely still marital property.

  
  

• "Can my spouse claim my inheritance if I used it to buy a house?"Inheritances are generally considered non-marital property, but if you used the inheritance to purchase or improve the marital home and didn’t clearly protect it in a prenuptial agreement or keep it separate, it may now be subject to equitable distribution.

Why This Matters in Chicago Divorce Property Division Cases

Determining whether a home is marital or non-marital is not just a technicality—it directly affects who gets what in the divorce. If the home is marital, the court has the authority to:

• Order the sale of the property and divide the equity

• Award the home to one spouse while compensating the other with assets of equal value

• Delay the sale to preserve housing for minor children under a deferred sale order

Courts in Cook County, DuPage County, Will County, and surrounding areas weigh several factors when deciding how to divide marital real estate, including each party’s contribution to the property, their financial needs, and whether one parent will have residential custody of the children.

If you are unsure how your home will be treated in your divorce, working with an experienced Chicago divorce attorney who understands Illinois property division laws is essential.

How Is the Marital Home Valued in an Illinois Divorce?

When going through a divorce in Illinois, an accurate valuation of the marital home is essential. Whether you’re selling the house, negotiating a buyout, or deciding how to offset equity with other assets, knowing the home’s fair market value forms the foundation of a fair property settlement.

The Illinois courts do not automatically assign a value to the home. Instead, it’s up to the parties, either through mutual agreement or through litigation, to determine the property’s worth. In contested divorces, this issue can become a significant point of conflict, which is why working with a seasoned property division attorney in Chicago can help you avoid costly mistakes.

Common Ways to Value Real Estate in Divorce Cases

There are three primary ways divorcing couples and their attorneys determine the fair market value of a marital home in Illinois:

1. Licensed Real Estate Appraisal (Most Reliable)

A professional home appraisal is typically the most accurate method and the one most accepted by Illinois courts. A licensed real estate appraiser conducts a comprehensive review of the home’s interior, exterior, location, upgrades, and comparable recent sales (comps) in your neighborhood.

• Why it matters: A formal appraisal ensures that negotiations or court decisions are based on credible, impartial data. In high-asset divorces or when there's substantial equity, this is the gold standard.

  
  

• Illinois divorce tip: If both spouses hire different appraisers and the values conflict, the court may either average the two or hold an evidentiary hearing to resolve the discrepancy.

  
  

2. Comparative Market Analysis (CMA)

A CMA is usually provided by a local real estate agent and includes data from recent home sales in your area. While not as in-depth as a licensed appraisal, it can still offer a ballpark estimate of the home’s value and is useful during early-stage negotiations.

• Best for: Couples who are attempting to reach a settlement outside of court or exploring whether one party can afford to keep the home.

  
  

3. Online Real Estate Tools (Use With Caution)

Websites like Zillow, Redfin, or Realtor.com offer automated valuation models (AVMs) that give rough estimates based on public data. While these tools may be tempting, Illinois divorce courts do not accept them as valid evidence because they lack verification and site inspection.

• Bottom line: Never rely solely on online estimates when large equity or fairness is at stake.

What If You and Your Spouse Disagree on the Home’s Value?

Disputes over home value are common, especially when one spouse wants to keep the property and the other believes they are undervaluing it to gain an advantage. In this situation:

• Each party may submit their own appraisal or expert testimony.

• Your attorney may cross-examine the opposing appraiser during litigation.

• The court will decide the home's value based on the evidence presented.

To avoid a legal battle, it’s often in your best interest to agree on a joint appraiser or consider mediation with the help of your respective attorneys. At Chicago Family Attorneys, LLC, we’ve helped clients across Cook County, DuPage County, and Will County navigate these disputes and reach equitable outcomes without unnecessary court intervention.

Why a Precise Valuation Matters for Equitable Distribution

In Illinois, marital assets are divided based on equitable distribution, not equal distribution. This means the court’s goal is fairness, not necessarily a 50/50 split. If the value of your home is over- or under-estimated, it can distort the entire asset division process.

For example:

• If the home is overvalued, one spouse may be forced to surrender more in other assets or assume a larger debt load.

• If it’s undervalued, the spouse keeping the home might gain an unfair financial advantage.

To prevent this, make sure your valuation is up to date, backed by objective data, and reviewed by your divorce attorney before entering negotiations or appearing in court.

What Happens When One Spouse Wants to Keep the Marital Home?

It’s common for one spouse to want to remain in the marital home after divorce, especially when minor children are involved or when the home has significant sentimental value. But keeping the house comes with legal, financial, and practical considerations that must be carefully evaluated. In Illinois, if one party wishes to retain the marital home, that decision must be backed by a plan that is fair to the other spouse and feasible under Illinois property division laws.

Whether you’re the spouse hoping to stay or the one being asked to walk away, it’s important to understand your rights, responsibilities, and what options are on the table.

Can One Spouse Keep the House in an Illinois Divorce?

Yes—but not automatically. If the home is classified as marital property under 750 ILCS 5/503, then either spouse can ask to keep it, but they must negotiate or litigate how the equity is divided. Illinois law does not favor one party over the other simply because they want the house more. Instead, the court looks at what is fair and reasonable under the circumstances.

If both parties want to keep the house, the court may:

• Award the home to the spouse with primary residential custody of the children (to promote stability),

• Consider who can afford the mortgage and maintenance on their own,

• Or order the house to be sold and the proceeds split.

  
  

The Buyout Option: How to Transfer Equity from One Spouse to the Other

If one spouse is awarded the home, they generally must “buy out” the other spouse’s share of the equity. This process involves:

1. Valuing the home (as discussed above),

2. Determining how much equity exists (subtract mortgage balance from fair market value),

3. Calculating the other spouse’s share, and

4. Paying that share, either in cash, through asset trade, or via refinancing.

Example:

If the marital home is worth $400,000 and there’s $200,000 left on the mortgage, the equity is $200,000. If both spouses are entitled to an equal share, the spouse keeping the home would owe the other $100,000 in the buyout—unless a different agreement or offset is negotiated.

This equity transfer can be paid:

• Directly in cash (if liquid funds are available),

• Through a cash-out refinance,

• By offsetting with other marital assets (like retirement accounts or vehicles).

  
  

Refinancing the Home During or After Divorce

When one party keeps the marital residence, refinancing the mortgage in their name only is usually required. This protects both spouses—ensuring the one leaving the home is no longer financially responsible and the one staying is solely liable for future payments.

Here’s why refinancing matters in an Illinois divorce:

• It removes the other spouse’s name from the loan and liability.

• It allows for a buyout of the equity owed to the other spouse.

• It often reassures the court that the person keeping the house can actually afford it.

  
  

Can I Be Forced to Refinance?

In many divorce settlement agreements or court orders, the spouse keeping the home is given a specific time frame—often 90 to 180 days—to refinance. If they fail to do so, the court may order the home sold. This prevents a situation where the other spouse remains tied to a mortgage they no longer benefit from.

Key Refinancing Considerations During Divorce:

• Credit score and income: Lenders will look at the sole applicant’s credit and income without considering joint marital income.

• Support obligations: If you are paying or receiving child support or spousal maintenance, these amounts can affect your debt-to-income ratio.

• Closing costs: Refinancing comes with its own fees, which must be accounted for during settlement negotiations.

If you're unsure whether you can qualify for refinancing, it's best to speak with both a mortgage professional and an experienced Chicago divorce attorney early in the process to evaluate your options.

Alternatives to Keeping the Home

If refinancing isn’t possible or one spouse cannot afford the buyout, selling the house may be the only practical solution. In some cases, courts may approve a deferred sale, allowing one spouse (typically the custodial parent) to remain in the home for a set period before the property is listed and sold. This can provide stability for children, but it must be balanced with the financial realities for both parties.

At Chicago Family Attorneys, LLC, we help clients throughout Chicago, Cook County, Will County, DuPage County, and Lake County evaluate whether keeping the marital home is financially viable and strategically wise. Whether through negotiation or litigation, our goal is to achieve a property division that reflects your priorities and long-term goals.

Negotiation Strategies for the Marital Home: Reaching a Fair Divorce Settlement

When it comes to deciding what happens to the marital home in an Illinois divorce, reaching an agreement outside of court can often save time, legal fees, and emotional distress. But negotiating who gets the house—or how the equity is divided—is rarely simple. Whether you're seeking to keep the home, walk away with a fair buyout, or ensure the property is sold and proceeds divided, a clear strategy is critical.

At Chicago Family Attorneys, LLC, we counsel clients on how to approach property negotiations with a long-term perspective. Below are some of the most effective ways to protect your financial interests while working toward a resolution that makes sense for both parties.

1. Use the Home as Leverage in Broader Settlement Negotiations

Your marital home is not just a place to live—it’s an asset. In many cases, it becomes a central bargaining chip in the overall division of marital property. You may be able to use your share of the home’s equity to:

• Negotiate a larger share of retirement assets, such as 401(k)s or pensions

• Offset spousal support obligations or reduce maintenance payments

• Retain other assets, like investment accounts or vehicles

Example: If one spouse wants to keep the home and the other wants financial liquidity, the party retaining the house may agree to give up claims on a portion of the other spouse’s retirement funds or bank accounts in exchange.

2. Explore Deferred Sale Agreements for the Best Interests of the Children

If you share children and one parent wants to remain in the home to provide stability, a deferred sale agreement may be an option. This arrangement allows one spouse (typically the custodial parent) to live in the home for a defined period—often until the youngest child reaches a certain age or graduates high school—after which the home is sold and equity is divided.

Courts in Cook County, DuPage County, and Will County will consider deferred sale arrangements if they promote the child’s best interests and both parties agree on the terms. These agreements should:

• Define who is responsible for the mortgage, taxes, and upkeep

• Set a clear timeline for the eventual sale

• Clarify how equity will be calculated at the time of sale

  
  

3. Don’t Overextend Yourself Just to Keep the House

It’s easy to get emotionally attached to the marital home, especially if you’ve raised a family there. But it’s also one of the most common financial missteps in a divorce. Keeping a house you can’t realistically afford can lead to foreclosure, debt, or future litigation.

Before agreeing to take over the home, work with your divorce attorney and a financial advisor to:

• Evaluate whether you can comfortably handle the mortgage, taxes, insurance, and maintenance on your post-divorce income

• Understand the refinancing terms you’ll need to qualify for

• Run the numbers on what you may be giving up in exchange for the home (such as savings, investments, or retirement accounts)

Sometimes, walking away with your share of the equity and starting fresh is a wiser financial move than staying in a house that’s no longer sustainable.

4. Consider Partial Buyouts or Creative Division of Equity

Not all buyouts need to happen in one lump sum. If one spouse wants to keep the home but doesn’t have the ability to pay the full buyout amount right away, the parties can agree to a structured buyout or installment payment plan over a fixed period. Other creative solutions include:

• Trading assets: Offset equity with other marital property of similar value

• Silent second mortgage: A court-approved lien payable when the home is sold or refinanced

• Equity sharing agreement: Where both spouses maintain a share of equity until the home is sold at a later date

These options allow for flexibility in cases where one spouse has a strong desire to retain the home but lacks the liquidity to make a traditional buyout work.

5. Put Everything in Writing—With Legal Protections

Even if you and your spouse are amicable, verbal agreements are not enforceable in Illinois divorce proceedings. Every term relating to the marital home—whether it involves a buyout, refinance, deferred sale, or installment payments—should be:

• Clearly outlined in your Marital Settlement Agreement

• Incorporated into the final Judgment for Dissolution of Marriage

• Enforced through court orders with specific deadlines and contingencies

Failing to document your agreement properly can lead to future disputes, enforcement motions, or financial losses.

Protecting Your Future Starts with Informed Negotiation

Dividing a home during a divorce is never easy, but a carefully planned negotiation strategy can help you protect your equity, avoid unnecessary court involvement, and achieve an outcome that reflects your needs. Whether you're trying to stay in the house or make a clean financial break, knowing your legal options puts you in a stronger position.

At Chicago Family Attorneys, LLC, we help clients throughout Chicago and the surrounding counties negotiate smart, creative, and enforceable agreements involving real estate and other high-value assets. If you're unsure of your next steps, we’re here to help you evaluate your options and move forward with confidence. For a free consultation, call (312) 971-2581 or book a free consultation online.

Refinancing Pitfalls and Enforcing Property Division Orders in Illinois Divorce Cases

Even after you’ve agreed—or been ordered by the court to sell or transfer the marital home, the process isn’t always smooth. Problems often arise when one spouse fails to refinance, delays the sale, or refuses to vacate the property. In Illinois divorce cases, failing to follow through on property division orders can have serious consequences, and it's critical to understand your legal rights and remedies if things go wrong.

What Happens if Your Ex Won’t Refinance the Home?

Refinancing is one of the most important post-divorce steps when one party keeps the marital home. If the spouse awarded the home does not refinance, the other party remains legally and financially tied to the mortgage, even if they no longer live there or have no claim to the equity.

Common issues include:

• Missed mortgage payments harming your credit

• Difficulty qualifying for a new home loan

• Legal liability in the event of foreclosure

If your ex has failed to refinance within the timeline specified in your Judgment for Dissolution of Marriage or Marital Settlement Agreement, you have options.

Enforcing Property Division Orders in Illinois

Illinois law allows you to seek enforcement if your former spouse is violating a court order. Under 750 ILCS 5/511(a), you can return to court to compel compliance, including:

• Filing a Petition for Rule to Show Cause, asking the judge to hold your ex in contempt for failing to follow the court’s order

• Requesting a forced sale of the home if refinancing does not occur within the required timeframe

• Seeking attorney’s fees and costs, especially if the non-compliance is willful or causes you financial harm

At Chicago Family Attorneys, LLC, we represent clients throughout Chicago, Cook County, and surrounding counties in post-decree litigation and enforcement proceedings. Whether you need to compel a refinancing, reclaim owed equity, or seek sanctions, we have the courtroom experience to help you act quickly and effectively.

How to Protect Yourself During the Divorce Process

Many of these issues can be avoided through careful drafting of the divorce agreement. If you’re still in the negotiation phase, work with your attorney to:

• Include firm deadlines for refinancing, sale, or buyout

• Specify what happens if deadlines are missed (e.g., mandatory sale)

• Outline each party’s responsibilities for taxes, mortgage payments, and maintenance until the transfer is complete

• Use quitclaim deeds or court orders to clarify ownership changes

In some cases, especially when trust is low, it may be wise to hold closing proceeds in escrow or delay final transfer of title until refinancing is confirmed. These added protections can prevent unnecessary litigation later.

Don’t Let Property Issues Derail Your Peace After Divorce

Even after your divorce is finalized, unresolved issues surrounding the marital home can continue to affect your finances, credit, and peace of mind. If your ex-spouse refuses to comply with a court-ordered sale, drags their feet on refinancing, or violates the terms of your settlement agreement, you don’t have to wait and hope for the best.

Illinois family courts take enforcement seriously, and so do we. At Chicago Family Attorneys, LLC, we help our clients take swift legal action to protect their rights and hold the other party accountable. Whether you’re preparing to negotiate property terms or dealing with post-divorce noncompliance, our team is ready to step in and help you resolve it.

Final Thoughts: Selling the Marital Home in Divorce Requires Strategy, Legal Guidance, and Timely Action

Dividing the marital home during divorce is never just about money—it’s about protecting your future, your credit, and in many cases, your children’s stability. Whether you’re looking to sell the property and split the proceeds, negotiate a buyout, or stay in the home and refinance, every decision you make can have long-term financial and legal consequences.

In Illinois, the process of selling or transferring ownership of a marital home is governed by equitable distribution laws, detailed under 750 ILCS 5/503, which require careful planning and execution. From accurate property valuation to drafting enforceable settlement agreements, each step plays a crucial role in securing a fair outcome.

At Chicago Family Attorneys, LLC, we represent individuals and families navigating divorce and property division throughout Chicago, Cook County, Will County, DuPage County, Lake County, Kane County, and McHenry County. Our attorneys bring deep knowledge of Illinois family law and a strategic mindset to every case. Whether you’re just beginning the divorce process or facing post-decree complications involving the home, we’re here to protect your rights and advocate for your future.

Schedule a Confidential Consultation with an Experienced Chicago Divorce Lawyer

If you're wondering:

• "Should I sell my house before or after divorce in Illinois?"

• "What if my ex won’t refinance the home?"

• "How is equity divided in a divorce?"

• "Can I afford to keep the house after the divorce?"

Then it's time to get trusted legal advice from a team that handles these issues every day. Call the divorce lawyers at Chicago Family Attorneys, LLC for a free consultation at (312) 971-2581 or book a free consultation online.

Frequently Asked Questions About Selling the Marital Home in an Illinois Divorce

Do we have to sell the house in a divorce in Illinois?

Not always. In Illinois, divorcing spouses have several options when it comes to dividing the marital home. You can choose to sell the home and divide the proceeds, or one spouse can keep the home by buying out the other’s share of the equity. If the parties cannot agree, the court may order the home sold, especially if equitable division cannot be achieved through other assets. Courts in Cook County will typically favor a sale if neither party can afford to refinance or maintain the home on their own.

Can one spouse be forced to sell the house during divorce?

Yes. If the home is classified as marital property and no agreement can be reached, the court can order a judicial sale of the property under 750 ILCS 5/503. This commonly happens when neither spouse can afford to keep the home independently, or when the equity needs to be divided in a way that allows for a fair distribution of marital assets. In contentious divorces, forcing the sale ensures that neither party remains tied to a property they cannot sustain.

What happens if my ex won’t refinance the mortgage?

If your divorce agreement or court order requires your ex to refinance and they fail to do so, you can petition the court for enforcement. This typically involves filing a Petition for Rule to Show Cause, which may lead to a contempt finding and potential sanctions. If refinancing was a condition of retaining the home, the judge may instead order the house sold. It's essential to include refinancing deadlines and consequences in your divorce judgment to protect your credit and financial standing.

How is the value of the home determined in an Illinois divorce?

The home’s value is typically determined by a licensed real estate appraisal, which courts consider the most reliable method. Other options include a comparative market analysis (CMA) from a real estate agent or agreement between the parties based on fair market comps. Valuation is a crucial part of determining each party’s share of equity and must be accurate to avoid an unfair division of property.

Can I buy out my spouse’s share of the home?

Yes. In Illinois divorces, one spouse may buy out the other’s equity interest in the home. This often happens when one party wants to remain in the home, especially if children are involved. A buyout usually requires refinancing the mortgage into your name alone and paying your spouse a lump sum or structured payment that reflects their share of the equity. The terms must be clearly outlined in the Marital Settlement Agreement to prevent disputes later on.

What is a deferred sale order and when is it used?

A deferred sale order allows one spouse—typically the parent with primary custody of the children—to remain in the home for a set period before it must be sold. Courts may approve this arrangement if it serves the best interests of the children and both parties agree to the financial terms. The order will specify who pays the mortgage, maintenance, and when the home will be listed for sale.

Is it better to sell the house before or after the divorce is finalized?

There is no one-size-fits-all answer. Selling before divorce can simplify the asset division process and allow both parties to move forward without lingering joint liabilities. However, some couples prefer to wait until after the divorce is final to better understand their financial situation or allow one spouse to remain in the home temporarily. Consult with your divorce attorney to evaluate tax implications, timing, and legal strategy before deciding when to sell.

Can both spouses stay in the home during the divorce?

Technically, yes—but it’s rarely advisable. Illinois law does not require one spouse to move out immediately upon filing for divorce unless there are safety concerns or an order of exclusive possession is issued by the court. If the relationship is amicable, temporary cohabitation can reduce housing costs. However, in most contested cases, especially involving children or domestic conflict, courts may grant one party exclusive use of the home until the case is resolved.

What if the home is in only one spouse’s name?

Title ownership alone does not control how the property is treated in an Illinois divorce. If the home was purchased during the marriage with marital funds, it will generally be considered marital property and subject to equitable division. Even if the deed is in one spouse’s name, the other spouse may still be entitled to a share of the equity if they contributed financially or if the home increased in value during the marriage.

Can we sell the house and divide the money without a court order?

If both spouses agree to the sale and there are no temporary court restrictions, you can sell the home during the divorce. However, the proceeds may need to be held in escrow or divided according to a temporary agreement, especially if the divorce is not yet finalized. It's important to work with a family law attorney to ensure the sale is documented and the division of proceeds complies with Illinois law.