What Happens When Both Spouses Want to Keep the House in an Illinois Divorce?

 Posted on April 10, 2026 in Asset Division

The family home is often the hardest asset to deal with in a divorce. It is where your children grew up and where you built your life. For many people, it is also their biggest financial asset. When both spouses want to keep it, or when neither can agree on what to do with it, things can get complicated quickly. A St. Charles property division attorney can walk you through your options and help protect your finances.

How Does Illinois Law Handle the Marital Home in a Divorce?

Illinois uses an equitable distribution standard to divide marital property. This means courts divide assets fairly, but not always equally. Under the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/503, the marital home is considered marital property if it was purchased during the marriage, even if only one spouse's name is on the deed. A judge will look at several factors before deciding what happens to it, including each spouse's finances, their contributions to the marriage, and whether children are involved.

If the couple has minor children, a judge may allow the parent with most of the parenting time to stay in the home for a period of time. The goal is to avoid uprooting the children's lives any more than necessary.

What Are the Options When Both Spouses Want the House During an Illinois Divorce?

Disputes over the family home can become some of the most contentious issues in a divorce. When neither spouse agrees to give up the home, there are three main paths forward.

Buyout

Buyout is when one spouse pays the other for their share of the home's value and takes full ownership. To do this, you need a professional appraisal to find out what the home is worth. The spouse keeping the home also needs to qualify for a new mortgage on their own. If you are looking at a buyout in 2026, current mortgage rates will play a big role in what you can afford.

Deferred Sale

A deferred sale means the court delays the sale of the home until a future date rather than requiring an immediate division. This is most common when young children are involved. The court may order that the home not be sold until the children are older or finish school. One spouse usually lives in the home during that time, and both spouses may share costs like the mortgage, taxes, and upkeep. The details of this arrangement need to be clearly written into the divorce agreement to avoid problems later.

Court-Ordered Sale

A court-ordered sale is when a judge legally requires the home to be sold and the proceeds divided between the spouses, regardless of whether both agree. If the spouses cannot reach an agreement on their own, this is often the result.

What Are the Options When a Spouse Refuses To Negotiate Over the Family Home in a Divorce?

Some spouses drag their feet or refuse to negotiate at all. When that happens, the court can step in. A judge can hold an uncooperative spouse in contempt, appoint someone to oversee the sale, or take the delay into account when dividing other assets. Kane County courts expect both spouses to follow through on divorce orders, and stalling usually backfires.

Keep in mind that during the divorce, responsibility for the mortgage depends on the court's temporary orders or the spouses' agreement. Even if only one spouse is living in the home, missed payments can still hurt both spouses if both names remain on the loan.

Can Spouses Divide a Home With Negative Equity During an Illinois Divorce?

Some homes are underwater, meaning the mortgage balance is higher than the home's current value. Under 750 ILCS 5/503, a judge can divide debt as well as assets. A divorce does not automatically free either spouse from what they owe the lender. In these cases, a short sale or a negotiated payoff may be the only realistic path forward, and both spouses will likely need to be involved.

Contact a Kane County, IL Property Division Attorney Today

When both spouses want the marital home, the financial stakes are high, and the decisions are hard. At Weiler & Associates, P.C., our St. Charles divorce lawyers are ready to help you work through even the most complex property disputes. Attorney Tim Weiler is a Certified Financial Litigator, which means our firm has specific, credentialed experience handling the financial side of difficult divorces. Call 630-331-9110 to talk with one of our attorneys about your case.