Divorce is complicated and takes time, but life does not stop. People often get separated, and when the divorce is pending, you might want to buy a house while separated from your spouse. Whether this is a good idea or not is debatable. Learn more about this topic below, and speak to our divorce lawyer in Chicago Michael C. Craven, for assistance.
What Illinois Law States About Buying A Home During Divorce
No laws prevent you from buying a house when separated from or divorcing your spouse. However, there are considerations to think about before making this major purchase during your divorce. Without knowing what your rights and obligations will be, make this decision perilous.
For example, how your assets will be characterized is not a certainty until the end of a case. You may think that some of your property, including the money to be used for your new home purchase, is your separate, non-marital property. However, it’s possible a judge may not agree.
Furthermore, if the new home is marital, it will be divided equitably. An equitable division of marital property may not be 50/50. For example, if one partner makes more money or has more assets than the other, the other party could be awarded more than 50% of the assets. In such a case, you may owe your soon-to-be ex more than you thought for his or her share.
Also, not knowing what your obligations will be or what monies you will be receiving add risks. , You may underestimate your final obligations or overestimate what you will ultimately receive for child support, maintenance, and/or contributing to your child’s other expenses. Unexpected outcomes could be very upsetting to your financial security. The same may be true if you over or underestimate how your marital debt will be allocated by the court.
Another consideration is the marital obligations existing during your separation or divorce. Simply moving out of the marital home does not relieve you of contributing to it. A court can require an absent spouse to pay or contribute to the mortgage, rent, and other household expenses.
These complications are reasons to consider delaying a home purchase until the divorce is final. It might be best to rent a home or apartment until the divorce process is finished.
What You Should Resolve Before Purchasing A Home During A Separation Or Divorce
Buying a home during the separation is possible, but it may not be advisable. Many attorneys recommend not purchasing a home during the process because there are many unknowns until the divorce is final. Some things that you should know before you buy a house while being separated are:
- How much alimony or child support will you pay or get from the other party?
- Who will your children spend nights with during the week?
- Who will be responsible for any marital debt?
- Who will have which assets when the court finalizes the divorce?
- What is going to happen with the marital home?
Mostly, these issues are settled once the divorce is final. Also, many people who purchase homes during separation often want to move in with a new partner. Unfortunately, this action can upset the other person, adding to the emotional aspect of a case and possibly making it more difficult for you to finalize a settlement.
Contact Our Divorce Lawyer In Chicago
Buying a home when you are separated from your spouse in Illinois has many factors that should be carefully considered. No divorce situation is the same, so if you want to buy a home and are not divorced yet, you should have the situation reviewed by a qualified lawyer. So, please contact our divorce lawyer in Chicago Michael C. Craven for legal assistance at (312) 621-5234.
Frequently Asked Questions About Buying a House During Divorce
Buying a house is a major financial decision, and doing so during a divorce can be especially complicated. Divorce affects income, credit, assets, and legal rights, all of which play a role in real estate transactions. The following frequently asked questions address common concerns about purchasing a home while a divorce is pending or recently finalized.
Is It Legal to Buy a House During a Divorce?
In most cases, yes, it is legal to buy a house during a divorce. However, whether it is advisable depends on several factors, including state law and any court orders in place. Many divorces involve automatic temporary restraining orders or financial injunctions that restrict either spouse from buying, selling, or encumbering property without consent or court approval. Violating these orders can have serious legal consequences.
Will a House Purchased During Divorce Be Considered Marital Property?
Often, yes. In many states, assets acquired during the marriage and before the divorce is finalized are considered marital property, regardless of whose name is on the title. This means a home purchased during the divorce process could be subject to division as part of the marital estate. Some exceptions may apply if the home is purchased with separate funds and properly documented, but this varies by jurisdiction.
How Does Buying a Home Affect the Divorce Settlement?
Purchasing a home during divorce can complicate property division, spousal support, and child support calculations. A new mortgage increases monthly expenses and may impact a court’s assessment of financial need or ability to pay support. Courts may also scrutinize whether marital funds were used for the purchase and how the asset should be valued and divided.
Can I Use Marital Funds to Buy a House?
Using marital funds to purchase a home during divorce is generally discouraged unless both spouses agree or the court authorizes the transaction. Doing so without permission may be viewed as dissipation of marital assets, which can result in financial penalties or an unequal division of property. Clear documentation and transparency are critical if marital funds are involved.
Will My Spouse Be Responsible for the Mortgage?
If the mortgage is solely in your name, your spouse is typically not legally responsible to the lender. However, from a divorce perspective, the debt may still be considered marital if incurred before the divorce is final. This means the court could factor the mortgage into the overall division of assets and debts, even if only one spouse signed the loan documents.
How Does Divorce Affect Mortgage Approval?
Lenders closely evaluate income stability, credit history, and debt-to-income ratios. During divorce, income may be uncertain due to support obligations or job changes. Lenders may also require a finalized divorce decree if spousal or child support will affect qualifying income or expenses. Pending divorces can lead to additional documentation requests or delayed approvals.
Is It Better to Wait Until the Divorce Is Final?
In many situations, yes. Waiting until the divorce is finalized provides clarity about income, assets, debts, and legal obligations. It also reduces the risk that the home will be classified as marital property or become a point of dispute in the divorce. While waiting may not always be practical, it is often the safer legal and financial option.
What Should I Do Before Buying a House During Divorce?
Before moving forward, consult with a family law attorney and a qualified mortgage professional. An attorney can advise on how the purchase may affect property division and compliance with court orders, while a lender can assess mortgage eligibility given your changing financial circumstances.
Buying a house during divorce is possible, but it requires careful planning and legal guidance to avoid costly mistakes and long-term financial consequences.
