Ask A Lawyer: How Can I Keep The House And The Kids?

Question: My wife wants a divorce and we are both living in our home right now. No legal paperwork is filed yet. She will not be able to afford the home on her own. Will the courts likely make me pay the mortgage and allow her to stay in the home? We have 3 kids 15, 12, 4. I also know one of the three want to live with me. What chance do I have to keep the home? I have paid for all bills for the 16 years of our marriage, and she has only brought in a part-time income the whole time. She has been a student all 16 years.  How would you recommend I present my case so that I can continue living in the home with the kids, and paying the bills? I would even consider it fair to help her afford a small place on her own since she is the one that wants out.


Answer: Who has to leave the home, if anyone, while a divorce is pending turns on the circumstances of the case.  If the parties can reside in the same home until the divorce can be concluded, there is no reason anyone should leave. Absent compelling reasons to force one party out of the home, conserving the marital assets by not having to pay for two households during the divorce process is preferable.  Should you leave the home, and as your wife apparently cannot pay the expenses, you would still be liable for the debt and should expect to pay the expenses until the final resolution of the divorce.  

Whether one party keeps the home or the home is sold will depend upon the finances of the parties and the overall division of assets and debts.  Assuming that you are both debtors on the home loan(s), the debt will need to be refinanced if the house is not sold so that only the spouse who possesses the home is liable for the debt.  Failure to refinance the home and transfer the house from joint ownership can raise credit and lien issues later.

Assuming you will both have time with the children; you will each need a suitable home for the children to live in.  Before pursuing any changes in residences of either of you, you should explore whether a settlement can be reached or identify the financial and property issues that are likely to be at issue in a trial, so that any interim changes do not create further complications of your case.  You should consult with an experienced family law practitioner in your state, such as Cordell & Cordell, to map out strategies for handling the issues.



Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.


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