House Arrest: Limitations on the Sale of the Marital Residence During a Divorce

The marital residence is often the largest asset in a couple’s marital estate. It is also likely to be the most expensive asset to maintain. As such, there are several reasons (access to equity and/or reduction of expenses, to name a few) why it may make sense to sell the marital residence while a divorce is pending.

If both parties agree, there is nothing precluding the sale of the marital residence during the pendency of a divorce. If, however, the parties do not agree (as is often the case in divorce proceedings), the party desiring the sale will need to obtain an order from the court to do so.

Until recently, courts would regularly grant motions requesting the sale of a marital residence under the “temporary relief” provisions of Section 501 of the Illinois Marriage and Dissolution of Marriage Act. Litigants (and the court) relied specifically on Section 501(a)(3) which is an all-inclusive provision that authorizes the court to order “the purchase or sale of assets… in appropriate circumstances” on an interim basis. 750 ILCS 5/501(a)(3).

However, this common practice was recently called into question when the First District clarified that the sale of a marital residence (or any other asset) during the pendency of a divorce was “appropriate only in extraordinary circumstances, where such a sale is required to otherwise maintain the status quo prior to final dissolution” and that “a court should not use Section 501(a)(3) to unnecessarily ‘adjudicate the property rights and claims of the parties prior to the entry of the decree of dissolution.’” In re Marriage of Gabrys, 2023 IL App (1st) 221763.

The First District’s ruling in Gabrys makes it clear that a party seeking to sell the marital residence needs to show the existence of “extreme circumstances” that would warrant the sale prior to the finalization of the divorce. Unfortunately, Gabrys provides little guidance on what exactly constitutes an “extreme circumstance.”

Like many areas of family law, selling the marital residence (or any other asset) during the pendency of a divorce is a complicated and evolving topic. Contact an experienced member of the Beermann LLP legal team for expertise and guidance on this issue, and all of your other family law questions.

Samuel T. Czervionke, Associate

For more on Mr. Czervionke, please visit:
www.beermannlaw.com/team/samuel-t-czervionke.