Detailed answer: How Illinois law lets you force sale or division of real property you still co-own with an ex
If you and your ex still hold title to the same real property in Illinois after divorce, you have several legal routes to divide or force a sale. The most common is a civil partition action in the circuit court. Other options include enforcing any property-related provisions in your divorce judgment, negotiating a buyout, or using alternative dispute resolution. Below is a plain-language guide to each option, what to expect, and how Illinois law treats partition.
1) Partition action (court-ordered division or sale)
Under Illinois law, any co-owner of real property can file a partition action to divide the property or force its sale. The relevant procedure appears in the Illinois Code of Civil Procedure (partition statutes). A court first examines whether the property can be fairly divided “in kind” (physically split) without unfairly harming any owner. If division in kind is impractical or would be inequitable, the court can order a public sale of the property and divide the sale proceeds among the owners according to their shares.
Key points about partition actions:
- Either co-owner may start the case in the county circuit court where the property sits.
- The court determines ownership interests, may appoint a commissioner to manage appraisal and sale, and allocates proceeds after paying liens, taxes, and costs.
- Partition is an equitable remedy. The court balances fairness and practicality when deciding whether to divide or to sell.
See the Illinois partition law: 735 ILCS 5/24-1 et seq. (Illinois Code of Civil Procedure) for statutory procedure and remedies: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3075&ChapterID=67.
2) Enforcing a divorce judgment that addresses the property
If your divorce decree or marital settlement agreement assigned the property or required sale but your ex refuses to comply, you can ask the divorce court to enforce its order. Remedies include contempt, an order directing transfer or sale, or an execution to collect money ordered by the court.
If the decree left title in both names but allocated the economic value of the property to one party (for example, ordered the ex to refinance or to pay a buyout), file a motion in the family court that issued the judgment. The court can order compliance or impose consequences for noncompliance.
3) Buyout or negotiated settlement
Parties often avoid court expense and delay by negotiating a buyout: one co-owner pays the other the appropriate share to get full title. A buyout usually requires a current appraisal and agreement about offsets (e.g., mortgage, repairs, taxes). You can use mediation or a neutral valuation expert to reach terms.
4) Forced sale by mortgage or foreclosure issues (limited and fact-specific)
If there is a mortgage and a co-owner defaults, the mortgagee (lender) may foreclose. That can result in sale but has different outcomes and risks than a partition action and can raise credit consequences for both owners. A co-owner cannot generally force the lender to foreclose as a method of dividing equity; foreclosure is a lender remedy tied to loan default.
5) Quiet title or claims that affect ownership shares
If the dispute includes challenges to title (claims that one person doesn’t own the property or that an interest was newly created or extinguished), you can combine a quiet-title or declaratory judgment with a partition action so the court first settles ownership questions and then divides or sells as needed.
Common outcomes once you file a partition case
- Partition in kind — rare for a single-family house; more common with divisible land parcels.
- Partition by sale — court orders sale (often by commissioner or sheriff), pays off liens, taxes, commissions, and divides net proceeds by ownership shares.
- Buyout ordered or negotiated before sale — sometimes one co-owner buys the other’s share using court-ordered valuation.
Practical considerations and defenses the other side might raise
- Ownership type and title language matter (joint tenants, tenants in common, trust ownership, etc.). Check the deed at the county recorder.
- Family court orders that already allocated the property can limit or shape relief in partition proceedings — bring the divorce judgment to court.
- A co-owner may assert equitable defenses like laches (delay) or claim that partition would create undue prejudice.
- Existing mortgages, tax liens, or judgments against either owner affect proceeds and the ease of sale.
Procedure and timeline (typical)
- File a petition for partition in the county circuit court where the property sits.
- Court serves notice on all parties and interested lienholders.
- Court may order appraisal, mediation, or appoint a commissioner to manage sale steps.
- If sale is ordered, the court sets terms and conducts public sale; after sale, the court approves distribution of proceeds.
Time to resolution varies: simple agreed buyouts or settlements may take a few weeks to months; contested partition actions commonly take several months to a year or longer depending on court schedules and litigation complexity.
Costs and fees to expect
Partition actions involve filing fees, service costs, appraisal fees, attorney fees (if you hire counsel), commissioner fees for sale management, and real estate commissions for court-ordered sales. Courts sometimes allocate costs between parties based on fairness.
What to gather before you act
- Copy of deed/title showing current ownership.
- Divorce judgment or settlement that mentions the property.
- Recent mortgage statements, property tax bills, homeowner association statements, and insurance info.
- Any written communications about offers, buyout proposals, or settlement efforts.
If you plan to file, take these items to a real estate litigation or family law attorney for a case-specific plan.
Statutes and resources
Primary statute on partition actions: 735 ILCS 5/24-1 et seq. (Illinois Code of Civil Procedure). See Illinois General Assembly online for the statutory text: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3075&ChapterID=67. For procedural questions about filing in your county, check your circuit court’s website or the Illinois Courts website: https://www.illinoiscourts.gov/.
Important: This article summarizes common options under Illinois law but cannot address every fact pattern. Specific outcomes depend on your deed, divorce order, liens, and other legal facts.
Disclaimer: I am not a lawyer. This post is informational only and does not constitute legal advice. Consult a licensed Illinois attorney to evaluate your case and represent you in court.
Helpful Hints — steps to take and tips for working with your ex or the court
- Check the deed first. Confirm how title is held (joint tenancy, tenants in common, or other). Request a certified copy from the county recorder.
- Locate your divorce judgment. If it addressed the property, enforcement in family court can be faster than a new partition action.
- Get a current appraisal before negotiating. Accurate valuation helps you calculate a fair buyout.
- Consider mediation. A neutral mediator can help you reach a buyout or sale agreement and avoid litigation costs.
- Budget for fees. Litigation and sale expenses reduce net proceeds — weigh the financial trade-offs of forcing a sale.
- Protect your credit. If the mortgage is in your name and your ex stops contributing, make arrangements to avoid default or foreclosure.
- Ask about temporary relief. Courts can sometimes issue temporary orders for use, possession, payment of mortgage, or taxes while the case proceeds.
- Work with an attorney experienced in partition and real estate litigation. They can file the proper pleadings, coordinate appraisals, and manage sale mechanics.
- Keep records of offers and communications. Courts consider attempts to resolve disputes amicably.
- Plan for tax consequences. A sale or buyout may have capital gains implications — consult a tax advisor.