Illinois is a no-fault divorce state, so neither spouse has to prove the other did something wrong, and marital property, including the house, is divided in a way that's fair, which isn't always 50/50. For homeowners, the biggest questions are whether the house is marital property, what happens to the mortgage and whether to sell, buy out or wait.
A lot of my clients come in assuming that because they bought the house, it's automatically theirs. Sometimes that's true, and often it isn't, so here are the basics in plain English, along with what to ask your attorney.
Do you have to prove fault to divorce in Illinois?
No, Illinois doesn't require either spouse to prove fault. Under Illinois law, the only ground for divorce is that irreconcilable differences have caused the marriage to break down, and if you've lived apart for at least six months in a row before the divorce is finalized, the law treats that as proof.
Is the house marital property?
It depends on when the house was bought, not just who bought it. Illinois law separates marital property, which is generally what either of you acquired during the marriage, from non-marital property, like a home one of you owned before the wedding, and anything bought during the marriage is presumed marital unless someone proves otherwise. Whose name is on the deed doesn't settle it either, because that presumption applies even when only one name is on the title, and if you owned the house before the wedding and later added your spouse to the deed, the law generally treats that as a gift to the marriage.
Paying the mortgage with money you earned during the marriage usually doesn't turn a house you owned beforehand into marital property, because the family got to live there in return. A bigger contribution, like a full renovation paid for with marital money, can give the marriage a claim to be paid back, and Chicago divorce attorney Russell Knight explains how courts sort that out. Your attorney decides how those rules apply to your house.
How does Illinois divide the house?
Illinois divides marital property fairly, which isn't always equally. The court can look at things like how long you were married, what each of you contributed, each person's income and needs, and which parent the children will mostly live with. In real life, that usually leads to one of three outcomes for the house: you sell it and divide the proceeds, one of you buys out the other, or you keep it together for a while and sell later, and my overview of whether you have to sell the house in an Illinois divorce compares all three.
What about the kids, support and the mortgage?
Illinois now uses the terms parental responsibilities and parenting time instead of custody and visitation, and both are decided based on the child's best interests. Child support and maintenance, which is the Illinois term for spousal support, are based largely on each person's income, and that income matters for the house too, because a lender decides whether the spouse keeping it can afford the mortgage alone. And no matter what the divorce decree says, if both of your names are on the mortgage, you both still owe it until it's refinanced or paid off, which my article on what happens to the mortgage explains. Who pays the mortgage while the divorce is still going on is its own question, and Russell Knight's article on who pays the mortgage during an Illinois divorce explains how judges usually handle it.
Every family's situation is different, and your attorney is the right person for the legal questions. My job is the real estate: what the house is worth, what each option costs and how to make the plan work. I'm Megan Sullivan, a real estate broker and REALTOR® with Compass and a Certified Divorce Real Estate Expert (CDRE®) in Chicago. My Divorce and the House FAQs answer the questions I hear most, and when you're ready, schedule a conversation with me.
Megan Sullivan is a Chicago real estate broker with Compass, a Certified Divorce Real Estate Expert (CDRE®), and founder of The Divorce Collab. She helps divorcing homeowners understand their property options and coordinate with their professional team. A North Side resident for more than 25 years, she also works with local buyers and sellers.
This article is general education, not legal advice. I'm not an attorney, so please have an Illinois family law attorney review your situation.
