The disposition of the marital home in a divorce is often a sticky issue. The general principles regarding how to dispose of the marital residence in a divorce are similar in Illinois and the rest of the country. Usually, a jointly-owned residence will have a mortgage on it. This raises the issue of who will get the house and who will to make the payments.
It’s good to remember that similar issues arise with respect to credit cards, car loans or other joint debt. There is usually no divorce trial, instead divorce cases are most often resolved by a final settlement agreement. In the agreement, the joint debts are identified and the disposition of each is set forth.
For example, the agreement may provide that one of them is keeping the Mercedes. Title will be signed over, if necessary. However, problems can arise if there’s a joint debt on the car. Although the one party agrees to make the payments, this cannot relieve the other of the debt owed to the lender.
The agreement may try to solve the problem by saying that the one party will release, indemnify and hold harmless the other regarding the debt. However, the indemnity is ineffective against the lender and if there is a default, the other still owes the debt. The same critical problem can arise regarding the house in a divorce. If one party gets the residence and agrees to make the payments, what happens if he or she defaults on the mortgage?
Similar to the car loan, the agreement cannot force the mortgage lender to release one of them. Accordingly, it’s often best for the parties to sell the property. There is another solution: the one party obtains refinancing, which removes the other from the debt. If he or she fails to get the financing, they can revert to selling the house. Of course, other solutions can be chosen if the parties have assets to pay off the mortgage.
These basic principles apply, with slight permeations, in Illinois and nationwide. An effective procedure for a person facing a divorce action is to get a consultation with experienced counsel and learn the rights and obligations that apply under your facts. A strategy for resolving various issues like those discussed above can then be evaluated and eventually adopted.
Source: SummitDaily.com, “Financial Facts: How divorce affects your mortgage,” Bob Kieber, April 13, 2013