Partition actions are a unique option of last resort in a dissolution matter. When property is jointly owned by more than one person, and a point comes where the co-owners cannot decide on what to do with the property together, one of the owners may file a partition action with the court. A partition action is available for all kinds of joint owners (siblings who have inherited joint interests in the same property, for example), not just spouses. However, the issue can come up in a dissolution of marriage when the parties may not be able to agree on what to do with a jointly owned property (often the marital home).
There can be many reasons for this problem to occur. Most commonly, one spouse may insist on selling the marital home, while the other spouse will likewise insist on staying in the marital home.
There are typically two outcomes to a partition action: First, the court may divide up the property according to each parties’ ownership interest (this is typically only feasible with large tracks of land, not a residence as residences are normally deemed indivisible and cannot be divided without prejudice to the parties); second and more commonly, the court will order the sale of the property. It is important to note that the court is empowered to order the sale the property at a public auction, but the parties can agree to a private sale. However, a public auction can be a very risky option as there is no guarantee the house will sell for a certain amount. It will only sell to the highest bidder, whatever that amount may be. And further, any liens or mortgages on the property will have to be satisfied from the proceeds of the sale before that money can be divided up between the co-owners. Thus, a private sale offers the maximum amount of control over the process. (See Chapter 64 of the Florida Statutes)
Therefore, a partition action should only be pursued as a last resort, if the parties truly cannot come to an agreement on what to do with a piece of real property. It is important to note, however, that a partition action must be specifically pled for in a petition for dissolution of marriage in order for the court to have jurisdiction to order the partition of jointly owned marital property. Failure to include this request for partition can leave the parties and the court in a difficult position later in the process. That is why it is worthwhile to include a request for partition in the petition for dissolution so that it is available as an option, even though the parties should still do everything possible to come to a decision together on what to do with a piece of jointly owned property. One may also include a request in the partition action that the parties be permitted the right to bid on the property should be reach public auction.
Additionally, all individuals or entities with an ownership interest in the property must be included in the action for the court to order a partition. In other words, if Stan and Jean own a house together along with their son David, then David must be included in the partition action or the court cannot order the sale of the house. This is why it is important to make sure your attorney has a full and complete understanding of the ownership interests held on various types of real property.
Finally, in a dissolution of marriage, if there are significant enough assets and/or liabilities, the court can address who gets certain property through equitable distribution.
