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Can My Spouse Lease Out Our Rental Property Without My Consent During a Divorce?

rental property during divorceThe answer to this question, simply put, is no. When it comes to owning property, a married couple has to abide by the same rules that two business partners would, which means you both have to get the other person’s permission to take any action involving your property.

Basic Facts

Under Illinois law, all property acquired during the marriage, is considered marital property, regardless of how the property is titled. For most couples, when they buy property, they sign documents involving ownership and payment agreements. But even if you aren’t on the title to property, the house is presumed to be marital property if purchased at any point after the date of marriage, with some exceptions. Also, if you and your spouse took out a loan to pay for the property, you would have signed a document stating that you are both responsible for the monthly loan payment. Again, the same rules apply to debts in a marriage as property: if the mortgage was signed after the date of marriage, it is a marital debt even if only one spouse is on the loan itself.

Because a house that was acquired after the marriage is marital, you and your soon-to-be ex must have each other’s permission to do conduct any sort of transaction regarding the property, particularly if you are going through a divorce. This is always the case unless the deed states that a certain percentage of ownership has been assigned to each spouse, or whether your spouse’s ownership percentage specifically allows them to act on their percentage without your permission.

Haven’t spoken to your spouse in a while? If you are estranged with your spouse, they must still get your permission to lease out the property. The lease will be null and void without your signature.

What Can You Do?

If you find out your soon-to-be-ex has rented the property without your permission, there are few things you need to look into. First, you should contact your mortgage lender to see if renting out the property is even an option. Some mortgage lenders to not allow subletting your property while you are paying your mortgage, and they will be able to take legal action to stop it. If you rent out your property without the permission of the mortgage lender, they can assess fees against you and even repossess the property. Finally, if your ex has been collecting rent, you can request half of the money collected, and you need to take legal action to get your portion, at minimum within the divorce proceeding.

If you decide to agree with renting out the property, you need to put in writing how the rent money will be divided in order to avoid lawsuits in the future. If you no longer wish to have any involvement in the property, you can file a quick claim deed in your county courthouse to have ownership rights transferred over. However, it is advisable to first ensure that your spouse removes you from any loans associated with the property before you relinquish your legal interest. Once you’re divorced and legally removed from the deed and any mortgages, you can be free of any further liability with the property.

Important Things to Know

Each state has its own laws governing how property is handled during a divorce. Illinois law requires that the division be equitable and fair, but note that this does not always mean “50-50” as many assume. As discussed above, it also depends on if the property is marital property or separate property. Just because property was acquired before the marriage does not always mean it stays separate property either, as sometimes marital property gets mixed together with separate property, causing a conversion to marital property. . If you are unsure about your property rights during a divorce, you need to seek the advice of a qualified divorce attorney to protect your rights.

Understanding property laws, marital law, and division of property during a divorce is not an easy task. You need the advice of a qualified attorney who practices in real estate law and divorce law. At Sherer Law Offices, our attorneys will advise you through the entire process so that you can get through this difficult time.
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