Property Division in Divorce: Partition

For purposes of divorce, “partition” is a legal process that divides property, usually real property, into fractional shares for the spouses. Divorce or legal separation establishes grounds for partition in a divorce for jointly-owned marital assets of the spouses.

A partition agreement can dismantle jointly-owned property into separate undivided property interests for the divorcing spouses’ convenience. This agreement can be by post-nuptial agreement or a simple deed, and it is not mandatory. Absent an agreement between the parties, they can submit their joint property dispute to mediation or allow the court to divide joint property.

Partition agreements must be in writing and must be signed by both parties. Spouses may agree to partition property while they have the freedom to choose how they want it to be apportioned.

In comparison, court-ordered partition can involve a forced sale of a marital property item if it cannot be partitioned in a practical fashion. A partition order may have a useful application for fungible property, but it can be difficult for the spouses to cooperate in order to maintain a partitioned property. Forcing a sale carries the disadvantage of losing money by requiring sale at an inopportune time.

In some states that recognize tenancy by the entirety, real property held in that manner may not subject to partition until after the court issues the divorce decree. Ideally, partition should be done in a manner that does not devalue the property or erect obstacles to the future sale or use of the parties’ interests. That process often involves appraisal by a professional and can involve land use planning.

Courts have refused to order partition on many grounds in the past, and spouses seeking judicial partition should have reasonable and substantial necessity for seeking it. An asset achieves its full value only when the ownership is clear. Partition can provide a plausible solution for assets with complicated ownership.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.