Recently on our divorce forum a spouse asked, “My husband wants to sell a rental house we own. Can he sell the house without my permission or does he need me to legally agree to the sale?”
Although this question is very complicated, in general, the right to sell a house will depend on who has legal ownership rights to the property and on state laws. Ownership status is generally determined by who is listed on the deed of the property. The second consideration is whether the couple lives in a community property state or an equitable distribution state.
Community Property States
If you and your spouse reside in a community property state (Arizona, California, Louisiana, Nevada, Idaho, New Mexico, Texas, Washington, or Wisconsin) the debts and assets which you purchase or obtain during the marriage are considered joint property, which means they belong to both you and your spouse. This is true even if your name was not listed on the deed of the home.
Now, if your husband wishes to sell joint property in a community property state, you would have to agree to the sale and sign as a grantor on the deed.
What if your spouse acquired the house prior to the marriage?
If you live in a community property state but the rental home was purchased prior to the marriage and your name was not added to the deed, your husband can legally sell the home without your consent. If your name was added to the deed after marriage, however, you would have to consent to the sale and sign as grantor on the deed.
Can I take my name off the deed of the house?
If you and your spouse are both listed on the deed and have interest in the property, either you or your husband can be added or removed from the deed through a quitclaim deed. A quitclaim deed is the legal process to transfer the interest for the property to another person. After the transfer is completed and one spouse is the sole owner of the property, either party could sell the property without the consent of the other spouse.
Equitable distribution state
If you reside in an equitable distribution state and the rental house was acquired during the marriage, it is generally considered marital property, although if your name is not listed on the deed (under some conditions) your husband may have the right to sell the property without your consent. If this does occur, however, you are (generally) still entitled to equitable distribution of the proceeds from the sell.
Talk to a divorce lawyer if you have questions about how to protect yourself in divorce. For example, you can discuss any questions you have about your rights to the proceeds from the sale of assets or property prior to the divorce or what you can do if you believe your spouse is selling marital assets without your consent. You can also discuss your rights in regards to property obtained prior to the marriage or property which is deemed “separate property.”
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