A previous post on this blog discussed options a divorcing spouse has if they want to keep the family home in the property division process, and what factors might play in their favor. But sometimes greater conflict regarding the family home exists between spouses in a divorce.
For example, situations sometimes arise when one spouse in Florida wants to sell the home, but the other spouse does not. You might be surprised to learn that in some circumstances the sale of the family home can be ordered by the court, even if one spouse does not wish to sell. This is done through a partition action.
What is a partition action?
A partition action is essentially a request for the court to sever the spouses’ shared interest in the family home. Partition actions are generally included in the divorce filing. Either spouse or both spouses can request a partition.
If the partition is granted, the sale will occur upon the final judgment of dissolution. Proceeds from the sale will then be equitably and proportionally divided between the spouses.
Deciding what an equitable and proportional division of sale proceeds looks like is complicated. It is rarely a 50/50 split. Courts will calculate each spouse’s percentage of ownership and consider whether one or both spouses should be reimbursed for household expenses paid to maintain the property, including who paid the mortgage.
In addition, the fair market value of the property must be ascertained.
Oftentimes courts will lean towards granting partitions unless doing so would result in manifest injustice. A partition is often the most equitable solution to property division when spouses simply cannot agree on what to do with the family home in their divorce.
Partition actions may seem harsh to the spouse who did not wish to sell, but that spouse will still receive their fair share of the sale proceeds. This avoids the need for prolonged litigation regarding who keeps the family home, saving both spouses time, money and stress.