What Does the Law Say Regarding Home Sales During a Divorce?

Oftentimes, during a divorce, it can be challenging to divide marital property, especially the marital home.  Upon conflict, there are usually frequent questions about who will keep the marital residence when the divorce is finalized.  However, one side may move to force a sale of the home while the divorce is still pending.  

The recent case of In Re Marriage of Gabrys, 2023 IL App (1st) 221763, is the current controlling case law regarding the sale of marital property during the pendency of a divorce.  It is helpful to understand what this case stands for when considering whether you can force a home to be sold during a divorce case.

The statute that governs this matter, §501 of the Illinois Marriage and Dissolution of Marriage Act, states that a circuit court could order temporary spousal relief in the form of maintenance or child support, restraining orders or preliminary injunctions, or other appropriate temporary relief.  Of note, though, is that a temporary order entered under §501 (1) does not prejudice the rights of the parties, (2) may be revoked or modified before final judgment on a showing by affidavit and upon hearing, and (3) terminates when a final judgment is entered. The key word here is temporary.

The background facts of the case are as follows: Halina Gabrys and Czeslaw Gabrys were married in 1986 in Krakow, Poland.  The parties moved to Illinois and purchased a home. During the divorce case, Wife lived in the marital property and Husband lived in a rented apartment, but later moved to Florida. Then the wife traveled to Poland. 

The husband moved for the immediate sale of the marital residence, which was granted.  The wife filed an emergency motion to reconsider, which was denied and thus an appeal followed. The wife filed a notice of appeal to the First Circuit Court of Appeals.   

On appeal, Wife argued that the circuit court abused its discretion when it ordered that the sale of the home proceed immediately.  On the other hand, Husband argued that the circuit court acted within its discretion, since Wife was not primarily living in the marital residence.  The appellate court disagreed.

The appellate court reversed the circuit court’s decision and held that the immediate sale of the home was “wholly unnecessary.”  The Court reasoned that, in this case, the sale of the marital home was not temporary because it required the parties to sell a unique asset. See In re Marriage of Roman-Kroczek, 2021 IL App (1st) 210613.  §501 authorizes the sale of an asset prior to final dissolution, but only when the sale maintains the status quo of financial assets in the marriage.  To order an immediate sale, there must be aggravating circumstances, such as imminent foreclosure of the residence, and here, those circumstances do not exist.

In light of this ruling, it is important to note that divorce courts often try to keep the financial status quo of the parties before the divorce is finalized.  Even though § 501 of the Illinois Marriage and Dissolution of Marriage Act allows courts to order temporary spousal relief, it is important to remember that a court may not order immediate sale of your marital property without dire or extreme circumstances, such as foreclosure or an inability to pay the expenses on the home.

The Law Office of Erin M. Wilson LLC can navigate these complex issues for you during the pendency of your divorce. Contact us at 312-767-4220 to schedule a consultation.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.