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In Contemplation of Marriage: How to Handle the Marital Home During a Divorce

 Posted on October 15, 2018 in Division of Property

Lombard divorce lawyersWhen a couple decides to end to their marriage, determining how to divide marital property is often a challenging process. Before division can even begin, the parties and the court must first establish what constitutes the marital estate. Illinois law provides fairly straightforward guidelines as to what is considered marital property and what is not, but, as with most areas of law, there may be some exceptions to the rules. On such variation may include a marital home purchased prior to the marriage, which, by the letter of the law, could be considered non-marital property.

In Contemplation of Marriage

According to the Illinois Marriage and Dissolution of Marriage Act (IMDMA), assets that are acquired prior to the marriage are generally non-martial property, and those acquired by either spouse subsequent to the marriage are part of the marital estate. By this standard, a home purchased before a couple actually gets married could ostensibly be considered non-marital property, especially if the home was titled in just one party’s name.

Despite the best theoretical intentions of the law, the real world often proposes logistical challenges. For example, it is not uncommon for a couple to begin looking for a home and complete the purchase before their marriage, with the intention of the sharing the home once they are married (or sooner). If the marriage subsequently ends in divorce, the status of the home as marital or non-marital property may be in question. Over the last four decades, several cases around the state have addressed similar situations and appellate courts have established a reliable case law precedent.

Case Law Examples

In its 1979 ruling in In re Marriage of Stallings, an Illinois appeals court asserted that the provisions in the IMDMA are meant to protect individual property purchased with one spouse’s own funds prior to marriage. “[It] does not arbitrarily categorize all property acquired prior to marriage as nonmarital property.” The court went on to recognize that the home purchased by the couple prior to marriage was marital property, as it “was purchased in contemplation of the forthcoming marriage” with the intention of it becoming the family home. Apart from an initial down payment, the equity in the home was provided by marital funds as the couple made mortgage payments once the marriage began.

More recently, a 2011 case, In re Marriage of Weisman, reaffirmed the state’s position and clarified some of the necessary considerations. The IMDMA states that a purchase made in contemplation of marriage cannot be considered marital property solely on that basis. Instead the court must consider the totality of the situation. Weisman established that in doing so, the court should take into account:

  • The spouse(s) who signed the contract or offer;
  • The name on the title;
  • The length of time between the purchase and marriage; and
  • Whether equity in the property was built or acquired with marital assets.

The burden of proof is on the spouse who wishes to have the property determined to be part of the marital estate.

If you are considering divorce and have questions about how real estate concerns may affect the process, contact an experienced Lombard divorce attorney today. At A. Traub & Associates, we understand the complexities of the law and are equipped to help you protect your assets. Call 630-426-0196 for a confidential consultation.



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