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Real Estate Ownership in Marriage

on in Real Estate

real estate ownershipUnder Illinois law, a married couple may choose to establish joint ownership of real estate in several distinct ways. Each method offers different types of legal protection and ownership arrangements, including the disposition of such property upon divorce or the death of one spouse and the potential impacts of creditors. The most common ownership arrangements are known as tenants in common, joint tenancy, and tenants by the entirety. Only married couples, however, may acquire real estate as tenants by the entirety.

Joint Tenancy vs. Tenants by the Entirety

A joint tenancy ownership arrangement may be entered by any number of co-owners, with no relationship requirements. The property deed must explicitly indicate the owners’ intention to create joint tenancy, and grants each owner equal rights and use of the property. Joint tenancy also establishes that, upon the death of one owner, his or her portion of the property will be passed to the surviving owner(s), rather than to the heirs of the deceased owner’s estate. For a married couple, this arrangement may offer a level of security for any type of jointly owned property.

However, in a joint tenancy, creditors of an owner may seek to obtain that owner's share the property to satisfy outstanding debts. The remaining co-owner(s) of the property will continue to own their share, but the ownership arrangement transforms into a tenants in common situation.

A couple, though, may choose to own the marital home as tenants by the entirety, a variation on joint tenancy only available to married couples. When this type of arrangement is chosen, each spouse retains equal interest and access to the property, as well as the same survivorship provisions as a joint tenancy. The major difference, however, is that creditors may not obtain a single spouse’s share of ownership, regardless of the individual party's outstanding debt.

Real Estate Ownership and Divorce

The two types of ownership may also be impacted differently by divorce. Joint tenancy is not affected by the marital status of the owners. The sale of the property held in joint tenancy may only be accomplished by the agreement of both parties, which may be required by the divorce decree, but is not assumed automatically by law. A tenants by the entirety arrangement, on the other hand, is transformed to a tenants in common ownership immediately upon the dissolution of the marriage. Since such ownership is only available to married couples, it may not extend beyond the divorce.

Regardless of the type of ownership, if the property was acquired during the marriage, it will most likely be considered marital property for the purposes of asset division. In the event of joint tenancy with additional co-owners, only the shares owned by the couple would be subject to equitable distribution. These considerations can often be very complex, and the assistance of a knowledgeable lawyer can be invaluable in understanding the process.

If you are considering a divorce and have questions about how jointly-owned real estate may be handled, contact an experienced St. Charles divorce attorney. At Bochte, Kuzniar & Navigato, P.C., we recognize the challenges that couple face in divorce and are fully prepared to offer our help every step of the way. Call 630-377-7770 today to schedule your free consultation.

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