As a divorce attorney, one question I am frequently asked is “should I stay in my house, or should I sell it?” This is because, for many, the marital residence is both the greatest source of security, and the strongest point of contention during the divorce process. As a result, the decision of whether to stay or sell can feel most pressing, particularly when there is tension affecting everyone under the roof. If this resonates with you, choosing whether to stay or sell is often the first—and arguably most important—step towards finding clarity, creating peace, and building the foundation for the next chapter of life post-divorce. So, to stay or to sell . . .

So, you want to stay?

For you, the marital residence represents stability, particularly during the upheaval that is divorce. The marital residence is the home where your children feel secure, where you’ve built lasting memories, or where proximity to schools, work, and community offers a sense of normalcy. Staying can also feel like a practical choice if you’re financially equipped to maintain the home or if moving would disrupt important routines. So, you want to stay—and you want your spouse to leave, ASAP. But what does Illinois law say?

Illinois courts are often reluctant to award one spouse exclusive possession of the marital residence during the dissolution of marriage process. In fact, the court may award exclusive possession of the marital residence only if “the physical or mental well-being of either spouse or his or her children is jeopardized by occupancy of the marital residence by both spouses.”

This high standard for exclusive possession means that simply feeling uncomfortable, stressed, or eager for space is unlikely to persuade the court to remove your spouse from the home. Instead, you must demonstrate concrete evidence of harm or jeopardy to your well-being or that of your children. This can make achieving exclusive possession challenging, especially in contentious divorces where both parties may feel entitled and/or strongly desire to remain in the residence.

A less contentious, more permanent alternative to seeking exclusive possession of the home via court intervention is negotiating an agreement where one spouse moves out in exchange for a buyout of their share in the home. A buyout allows one spouse to retain ownership of the home by compensating the other for their equitable share of the property’s value, net of debt. This option can be an effective way to resolve the who-gets-to-stay issue amicably, but it sometimes requires crafty negotiating and careful financial planning. The spouse staying in the home must have the resources to finance the buyout—via some combination of assets being allocated to them, a loan from a third party, or refinancing the mortgage in their name alone.

So, you want to sell?

For you, the marital residence feels like more of a burden than a safe haven, and/or you’re looking for a clean break, both emotionally and financially. Selling the marital residence can be a financially practical solution, particularly if maintaining the home isn’t financially viable for either you or your spouse. Given these considerations, you want to sell—but what does Illinois law say?

Illinois law dictates that the court must assign each spouse all of their non-marital property. Non-marital property includes assets acquired before the marriage. If either you or your spouse owned the home before the marriage and the home was kept exclusively in one spouse’s name, then the home—and any sale proceeds—will remain with that spouse post-divorce, save, perhaps, for circumstances where there were costly improvements made that were not to the benefit of the family. However, if the home was purchased during the marriage, it is considered marital property, and the sale proceeds must be divided equitably. Illinois is an equitable distribution state. Equitable distribution doesn’t necessarily mean an equal split. Instead, equitable distribution mandates a fair division of the sale proceeds, taking into account factors such as the value of any other property assigned to each spouse, the length of the marriage, and each party’s contribution to the marital estate. This can create complications, particularly where one spouse feels entitled to a larger share of the sale proceeds based on their contribution in acquiring the residence or if there are discrepancies in earning potential between the spouses. However, strategic negotiation can help achieve an equitable allocation of the entire marital estate for both parties, even where one spouse is awarded a disproportionate share of the marital residence’s sale proceeds.

Regardless of whether you choose to stay or sell the marital residence, it is essential to obtain sound legal advice to navigate the complexities of property division and its potential impact on your future. Beermann LLP attorneys are well-versed in the area of matrimonial law and handle such matters routinely.

Thomas T. Field, Equity Partner (JD/MBA/CFL)

For more information on Mr. Field, please visit:
www.beermannlaw.com/team/thomas-t-field.


  1. 750 ILCS 5/501(c-2)
  2. 750 ILCS 5/503(a)
  3. 750 ILCS 5/503
  4. 750 ILCS 5/503(d)(1-12)