Posted By Larry Tolchinsky on May 12, 2015
Last Update: 04/18/16
You live in Florida and you just got divorced. The two of you bought a house while you were married, which is usually the most valuable marital asset. The judge finalized your divorce, but ownership and how the home is to be disposed of wasn’t mentioned or adequately addressed in the settlement agreement or in the final judgment and now you have a problem. What do you do?
What do you do when an ex-wife or ex-husband won’t agree to buy you out or won’t answer your calls or texts about signing over the deed?
What do you do, if you need the home sold for any number of reasons: maybe just to get the divorce completely behind you; maybe because you cannot afford to live in the house and your credit and FICO scores are dropping.; or perhaps you need to get the equity out of the property.
Your answer may be a partition action.
What is a Partition?
Under Florida law, any owner of real estate can file a lawsuit requesting a judge to end the joint ownership of the property. Partition lawsuits are filed in all sorts of situations; however, no matter what the facts are, when two or more parties share ownership of real estate (commercial or residential) here in Florida, one of those owners has the legal right to request the property to be sold. (Thus, for those who have been divorced and still share joint ownership of the home they lived in while married, a Florida partition action may be a godsend.)
After a divorce, you and your ex-spouse are considered to be “tenants in common” — meaning, you are separate but undivided owners of the real estate — and under Florida law, the only way to forcibly sell the property is by filing a “partition” lawsuit. Florida Statute 64.011 et seq.
In a Florida partition action, the judge orders a fair and equitable distribution of the real estate, thereby ending the shared ownership of the property – and also orders a distribution of the proceeds from the sale of the home based upon factors, including the costs and expenses that one owner has incurred versus the other owner. Meaning, for example, if one owner has expended more than the other for the upkeep of the property, then the owner laying out the money will receive a larger portion of the proceeds from the sale of the home. (Also, if one owner has been living in the home, the non-residing owner can argue that they didn’t receive their share of the rental value of the property — these are 2 arguments that are normally made by the parties to a partition action and they are settled by the Judge at the time of the resolution of the case.)
Is a Partition Action a Separate Lawsuit?; Where is the Case Filed?
The request to partition the marital home after divorce is a circuit civil lawsuit. It’s not a part of the family law divorce case; since it pertains to land, the partition action must be filed in the county where the contested real estate is located. See, Rankin v. Rankin, 258 So.2nd 489 (Fla. 2d DCA 1972); Florida Statute 64.022.
If the home is in a different county than where the divorce was filed, then the partition action must be filed in the county where the house sits.
How does Remarriage or Death Impact The Marital Home After Divorce?
There are certain special situations where a divorced has occurred, there has been a change in circumstances between the ex-spouses, and the only way to resolve a dispute over the marital home is to file a partition action. These special situations include:
In some divorce cases, one spouse may be allowed to live in the home as part of their ex-spouse’s support obligation. That right to live in the home does have limits, however, and for example, the ex-spouse can sue for partition of the home if the supported ex-spouse (the one living in the marital home) remarries. The courts have reasoned that the remarriage changes that need for support and now the home should be free to be partitioned and sold. Anderson v. Anderson, 424 So. 2d 943 (Fla. 5th DCA 1983).
If an ex-husband passes away, courts have held that his ex-wife’s right to exclusively occupy the residence terminates as an operation of law. The two ex-spouses are no longer tenants in common because one of the tenants has died. The home is now subject to partition. Huff v. Huff, 453 So. 2d 531 (Fla. 5th DCA 1984).
What Should You Do?
My advice for those who have been through a divorce and want to unburden themselves from the real estate obligations they entered into while married, specifically the family home and mortgage, is to seek the advice and help of a Florida real estate lawyer with experience not only in real estate matters but divorce related issues as well. Cases involving the sale of a former marital residence can be difficult to resolve (including knowing how to correctly allocate expenses and lost revenue between the parties) and an aggressive yet compassionate approach can be vital in fairly resolving these disputes.
A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
For more about Florida partition actions, read some of our earlier posts including:
- Florida Real Estate Partitions And Underwater Mortgages: Are They Connected?
- Partition of Real Estate in Florida: Can You Divide Property Under Florida Law?
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