When a house was purchased prior to the marriage and only in one person's name, that house is typically non-marital and it's equity not subject to division in a divorce, but not always.

 

There are many exceptions. Such exceptions are when the house is purchased a few months prior to the marriage, or maybe later in the marriage and the Deed changes or the spouse is added to the mortgage.  Sometimes after the marriage, the couple renovates the house or parts of the house.

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In Illinois, when a house was purchased prior to the marriage, but in contemplation of the marriage, you can argue that the house is marital and subject to division no matter who is or who is not on the Deed. In fact, most Judges will find such houses as a marital asset when purchased close to the marriage.

 

If the house was purchased within 6 months prior to the marriage, almost always Judges have found the house to be a marital asset. Usually because when it's purchased within 6 months of the marriage, the spouse (who is not on the Deed) was usually heavily involved in the selection of the realtor, picking out the house, sometimes the one who had found the house, was involved in the closing, and heavily involved in the moving into the house and later decorating/furnishing of the house. Therefore, Judges tend to find the house to be a marital asset and subject to division.

 

If the house is purchased between six months and a year prior to the marriage, Judges have gone both ways. You really have to look at all the facts and circumstances. But if the house was purchased a more than 6 months from the date of the marriage, it is somewhat of a roll of the dice, but not impossible to claim that the house should be deemed marital.

 

750 ILCS 5/503(a)(8) is the statute that touches on his concept where it's noted that there are circumstances where property that would be otherwise be non-marital property can be “deemed” to be marital.

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Other ways to have the house deemed to be marital are: making material improvements to the house (like a new kitchen, new bathroom, or maybe even a new deck and pool outside), or documents change.  The spouse is later added to the Deed or the the spouse signed loan documents during a refinance. These are all solid reasons to convince a Judge that the house purchased prior to the marriage should be divided. 

 

If anything, know that there are many circumstances where purchasing the house prior to the marriage with only one spouse on Deed, does not automatically exclude the house from being divided. There are all sorts of arguments, some not even mentioned here, that could subject a house to be divided in a divorce.

 

Talking to an experienced lawyer is essential when anticipating a divorce or maybe you're in the middle of your case and your lawyer isn't looking at the nuances of the law.

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If you are in a situation where you or your spouse purchased the house prior to the marriage, and want to know how to best approach this issue, please contact me to discuss this topic. You can reach me on my cell phone at (630) 306-6300 or email me at: paul@paulnordini.com

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