Partition Actions: Forcing the Sale of a Jointly Owned Home

What Is a Partition Action?

A partition action is a legal proceeding that allows any co-owner of a property to force its division or sale, even when the other co-owners do not agree. In the context of divorce, a partition action becomes relevant when one spouse wants to sell the jointly owned marital home and the other refuses. While most property disputes are resolved through the divorce process itself, partition actions serve as an important legal remedy when negotiations fail.

When Partition Actions Are Used in Divorce

Partition actions in divorce typically arise in specific circumstances. The most common include situations where the divorce decree does not clearly address the home, one spouse refuses to cooperate with the sale of the home as ordered by the court, the couple was not legally married but co-owned property, or the divorce is final but the property was not addressed in the settlement.

It is important to note that if a court has already ordered the sale of the home as part of the divorce decree, a separate partition action is usually unnecessary. Instead, the aggrieved party can file a motion for contempt to enforce the existing court order.

Types of Partition

There are two types of partition available under the law:

Partition in Kind

Partition in kind involves physically dividing the property between the co-owners. This is more common with large parcels of land that can be subdivided. For a typical single-family home, partition in kind is usually impractical and rarely ordered.

Partition by Sale

Partition by sale is the more common remedy for residential properties. The court orders the property to be sold, typically at public auction or through a private sale, and the proceeds are divided among the co-owners according to their ownership interests and any equities the court considers.

The Partition Action Process

Filing a partition action involves several steps. First, the party seeking partition files a complaint with the court, identifying the property, the co-owners, and the nature of the ownership interests. The other co-owners are served with the complaint and have an opportunity to respond.

The court then holds a hearing to determine whether partition is appropriate. If the court orders partition by sale, it may appoint a commissioner or referee to manage the sale process. The property is typically appraised, listed for sale, and sold, with the proceeds distributed after payment of sale costs, liens, and other obligations.

Costs and Timeline

Partition actions can be expensive and time-consuming. Legal fees for filing and prosecuting a partition action can range from several thousand to tens of thousands of dollars. The process can take several months to over a year, depending on the complexity of the case and the court's schedule.

Additionally, properties sold through partition actions, especially those sold at auction, often sell for less than fair market value. This means both parties may receive less than they would through a voluntary sale.

Alternatives to Partition Actions

Before resorting to a partition action, consider these alternatives:

• Mediation: A neutral mediator can help both parties reach an agreement about the property without court intervention
• Buyout negotiation: One party may be willing to buy out the other if the terms are right
• Attorney negotiations: Having attorneys negotiate on behalf of both parties can resolve the impasse
• Motion to enforce: If a divorce decree already addresses the property, a motion to enforce the existing order is usually faster and cheaper than a partition action

Protecting Your Rights

If you are considering a partition action, consult with a real estate attorney who has experience with these proceedings. Understanding the costs, timeline, and likely outcome will help you determine whether a partition action is the best strategy for your situation or whether an alternative approach might achieve a better result.

Get Expert Help

Property disputes during divorce can be among the most contentious and financially consequential aspects of the process. Working with experienced legal and real estate professionals can help you protect your interests and reach a resolution that allows you to move forward.

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