When considering a divorce, people move money around or even hide assets. Real estate cannot be hidden or moved, however, because you know the address. Can real estate be sold by one spouse without the permission of the other spouse?
Property in Illinois can only be transferred if the transfer is by written contract or deed.
“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” 740 ILCS 80/2
A written document transferring real estate in Illinois must be a deed which complies with Illinois’ Conveyances Act.
“Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was the lawful owner of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. Such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at length in such deed.” 765 ILCS 5/10
If both spouses are on the deed, then both spouses have to sign the deed to transfer the property to a third party.
A Spouse Cannot Sell A Homestead Without The Other Spouse’s Permission In Illinois
If the property is the marital home, then the property is considered a “homestead.”
A spouse cannot sell a home their spouse is living in (the homestead).
“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)
Selling a homestead will require a court order from an Illinois divorce court.
“In case of a dissolution of marriage, the court granting the dissolution of marriage may dispose of the homestead estate according to the equities of the case.” 735 ILCS 5/12-905
A Spouse Can Sell A Property If The Other Spouse Is Not On The Deed
If both spouses are not on the deed and the property is not a homestead, the owner spouse can do whatever they want with the property in their name.
“Any…interest in marital property shall not encumber that property so as to restrict its transfer, assignment or conveyance by the title holder unless such title holder is specifically enjoined from making such transfer, assignment or conveyance.” 750 ILCS 5/503(e)
“In Illinois, the general rule is that an owner of property has an absolute right to dispose of his property during his lifetime in any manner he sees fit. This rule holds even when the transfer is conducted in order to minimize or defeat a spouse’s statutory marital ownership interests under the Probate Act…intestate share of surviving spouse…in the property conveyed. Even where property titled in the name of one spouse might be considered marital property, the titleholder has complete power to dispose of that property during the marriage as he or she sees fit. The fact that the titleholder has represented to his spouse that the property will be marital does not deprive him of that power.” Wood v. Wood, 672 NE 2d 385 – Ill: Appellate Court, 4th Dist. 1996 (citations omitted)
The freedom to sell and spend one’s property is not entirely free from consequence. At the end of a divorce, an Illinois divorce court should be allocating marital property partly based on the “the value of the property assigned to each spouse” 750 ILCS 5/503(d)(5)
When making final marital asset allocations, the statute does not distinguish between marital property and non-marital property assigned. Therefore, a waste of non-marital property that could have been assigned will be considered by an Illinois divorce court.
“It is inequitable to allow [a party] to dissipate [their] nonmarital estate in view of marital difficulties, and then to receive a larger distribution than that to which [the party] would normally be entitled simply because [the party] had little nonmarital property at the time of the dissolution.” In re Marriage of Cecil, 560 NE 2d 374 – Ill: Appellate Court, 3rd Dist. 1990
How To Stop The Sale Of A Property Pending An Illinois Divorce
At any time pending a final divorce decree, either party may motion for temporary relief. That temporary relief can include a request from the court to forbid some kind of action on the part of either party.
“Either party may move for…a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:” 750 ILCS 5/501(a)(2)
The court can then issue an order “restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued” 750 ILCS 5/501(a)(2)(i)
To grant injunctive relief forbidding the sale or transfer of a property it must be proven that “(1) the [litigant] has demonstrated a clearly ascertained right in need of protection; (2) irreparable injury will occur without the injunction; (3) no adequate remedy at law exists; and (4) there is a probability that the plaintiff will succeed on the merits of the case.” Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050, 1055 (1998)
If there are distributable assets available with the same value as the property to be sold or transferred, there is not an “irreparable harm” because an “adequate remedy at law exists.” In such circumstances, an injunction should not issue.
“[I]rreparable harm occurs only where the remedy at law is inadequate; that is, where monetary damages cannot adequately compensate the injury, or the injury cannot be measured by pecuniary standards.” Best Coin-Op, Inc. v. Old Willow Falls Condominium Ass’n, 120 Ill. App. 3d 830, 834 (1983)
Orders restraining the sale of property are very specific. A court order forbidding the sale of a property does not forbid any other activity that is customary, usual and/or reasonable.
“[H]owever, a[ restrainging] order need not include an exception for transferring, encumbering, or otherwise disposing of property in the usual course of business or for the necessities of life if the court enters appropriate orders that enable the parties to pay their necessary personal and business expenses.” 750 ILCS 5/501(a)(2)(i)
Can A Spouse Transfer, Sell or Destroy Other Property Before And During An Illinois Divorce?
Effectively, the same rules apply to all property that apply to real estate. However, there are no deeds or written sales contracts that requires a spouse’s co-signature for the transfer of non-real estate property.
“In Illinois…the owner of property has an absolute right to dispose of his property during his lifetime in any manner he sees fit, and he may do so even though the transfer is for the precise purpose of minimizing or defeating the statutory marital interests of the spouse in the property conveyed.” Johnson v. La Grange State Bank, 383 NE 2d 185 – Ill: Supreme Court 1978
A spouse still has the right to ask the court for a temporary injunction against the disposal or transfer of any property in the possession or control of the other spouse.
“[U]ntil a final determination is made by the trial court regarding the division of the disputed personal property pursuant to the petition for dissolution of marriage, respondent can claim no clear, ascertainable legal right to the exclusive possession of that property. At the present time, each party has an equal possessory right.” In re Marriage of Sherwin, 123 Ill. App. 3d 748, 753 (Ill. App. Ct. 1984)
All property owned by either party to an Illinois divorce is under the jurisdiction of the
“[U]nder the [Marriage and Dissolution of Marriage] Act, operation of the term “marital property” does not trigger until the time of dissolution. It is only property owned at the time of the judgment of dissolution that the court may classify as “marital property,” and property owned separately by the spouse before dissolution may be disposed of as he/she deems fit, absent any contrary order of the court. The court has power to adjust and determine the rights of one party in the property of the other only where a divorce has been granted.” In re Marriage of Schwartz, 131 Ill. App. 3d 351, 355 (Ill. App. Ct. 1985) (Citations Omitted)
A spouse seeking to transfer property that will likely be deemed non-marital and thus beyond the purview of the court must ask for a declaratory judgment to evade any court orders stymieing their freedom to do what they wish with their property.
“The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy.” 735 ILCS 5/2-701(a)
If you are suspecting your spouse of selling property in anticipation of a divorce filing or divorce ruling, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
If you are trying to sell, transfer or move property despite your possible or filed divorce, also contact me. I’ll explain how to achieve your goals.