Can a Spouse Sell Property Without the Permission of the Other Spouse in Illinois?

June 27th, 2024 by Tiffany Hughes

In the realm of marriage and property ownership, understanding the legal rights and responsibilities of each spouse is crucial. Many individuals may wonder whether one spouse can unilaterally sell property without spousal consent in the state of Illinois. The answer to the question of the legality of a spouse selling property without spousal permission is not a simple yes or no but rather depends on various factors governed by Illinois marital property law.

What is Illinois Marital Property Law?

Illinois, like many other states, operates under a legal framework known as marital property law. Marital property law means that property acquired during the marriage is typically considered marital property, regardless of which spouse’s name is on the title or deed. Marital property includes assets such as homes, vehicles, income, and investments obtained during the course of the marriage.

One key aspect of marital property law in Illinois is the concept of spousal consent. In most cases, both spouses must consent to the sale of marital property. However, there are exceptions to the rule that both spouses must consent.

“Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family; and if he abandons her, she is entitled to the custody of their minor children, unless a court of competent jurisdiction, upon application for that purpose, shall otherwise direct.” 750 ILCS 65/16

In Illinois, “where a homestead exists neither can change the residence of the other from that homestead without such other’s consent or unless another suitable homestead is provided.” Brod v. Brod, 390 Ill. 312, 324 (Ill. 1945)

When Selling Property Without Spousal Permission Is Allowed

Firstly, if the property is owned solely by one spouse and is considered non-marital asset, that spouse may have the legal authority to sell the non-marital asset without spousal consent. Non-marital assets generally includes assets owned by one spouse prior to the marriage, gifts and inheritances received by one spouse during the marriage, and certain property acquired after a legal separation. Essentially, if the house is owned solely by one party or was obtained solely by that party prior to the marriage, then spousal consent is not needed to sell the house in Illinois.

Additionally, if the spouses have a valid prenuptial or postnuptial agreement that addresses property rights and the sale of assets, the terms of the prenuptial or postnuptial agreement will govern whether one spouse can sell property without spousal consent. These agreements can vary widely and may grant significant flexibility or limitations regarding property transactions.

Another scenario where one spouse may sell property without the other’s permission is if a court grants permission through a legal proceeding such as a hearing or trial during a divorce or legal separation. During divorce proceedings, the court may issue orders regarding the division of marital assets, including the sale of assets. However, it’s essential to note that until a court issues such an order, both spouses typically retain an equal interest in marital assets.

Selling Marital Home to Pay Off Debts or Prevent Foreclosure During Divorce

Divorce real estate property sales in Illinois can be court ordered if the sale is to benefit the marital estate or prevent the loss of marital assets and non-marital assets. There are instances where emergency circumstances may necessitate the immediate sale of property, such as to prevent foreclosure during divorce or selling marital home to pay off debts. In these situations, a court may grant permission for the sale without spousal consent if it is deemed necessary to protect the marital estate and the property rights and interests of both parties.

While there are circumstances where one spouse may sell property without spousal permission in Illinois, such scenarios are typically governed by specific legal conditions, including the nature of the property, the presence of legal agreements, and court orders. Understanding these factors is essential for protecting the property rights and interests of both spouses in matters of ownership and disposition. It’s important for individuals in Illinois to understand their rights and obligations concerning property sales in Illinois marriage. Consulting with a knowledgeable attorney experienced in family law can provide clarity and guidance tailored to specific circumstances. The Law Office of Tiffany Hughes is a team of highly experienced attorneys specializing in family law with expertise in division of marital and non-marital assets and advising on stipulations and nuances of selling a marital or non-marital home.

Need More Information or Representation?

If you are getting a divorce or are separating and wanting to sell your marital or non-marital home without spousal permission, give The Law Office of Tiffany M. Hughes, P.C. a call today at 773-893-0228 for a confidential, complimentary 30-minute phone consultation or email Tiffany Hughes directly at Tiffanyhughes@thugheslaw.com. Our entire practice is solely dedicated to the area of family law. We are highly experienced in helping individuals navigate the do’s and don’ts of divorce real estate, assisting property sales in Illinois marriage and divorce, selling property without spousal permission, selling marital homes to pay off debts and preventing foreclosure during divorce, protecting marital and non-marital assets, and communicating the nuances of marital property law and property rights in divorce.

About Tiffany M. Hughes, Divorce Attorney, Principal, Managing Partner, The Law Office of Tiffany M. Hughes, P.C.:

Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.

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This blog is made available by The Law Office of Tiffany M. Hughes, P.C. for educational purposes only as well as to give you general information and a general understanding of Illinois law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and The Law Office of Tiffany M. Hughes, P.C. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in Illinois.  The law changes constantly and we do not go back in time to edit old posts that may be affected by these changes.  If you have any questions about Illinois law, which is the only State this blog and website discusses, please call The Law Office of Tiffany M. Hughes, P.C. for a complimentary phone consultation and do not draw any legal conclusions without speaking to a competent attorney in Illinois first.