Partition actions are common in divorces when the spouses cannot determine how to divide the property. A marital home is a significant asset and can be the source of major conflict in a divorce proceeding. A party in a divorce can file for a partition action whether they want to keep the house or whether they want it sold. The court cannot order a partition of marital property without one party filing for it or pledging for partition in the dissolution of marriage petition. If a party pledges for the partition in the dissolution of marriage petition then he or she will avoid filing a second action for petition. When the court orders partition, it is often difficult to fight because the action is brought as a result of the parties being unable to resolve their dispute over the property.
If a couple just owns a large undeveloped plot of land, then the court can order a physical division of the land. This is possible when the land can be divided in a manner that gives each party a plot of equal value. Most plots of land will have a home, which is impossible to divide evenly. Therefore, this type of partition action is uncommon.
More commonly, the court will order a sale of the home and divide the profits between the partners. The court can order the sale despite any homestead protections on the house. When the property is deemed indivisible and the court orders its sale, the court may appoint a clerk or magistrate to privately sell the property or hold an auction for the highest bidder. The problem with partition in this case is that the owners can lose money if the sale is at an inopportune time. However, an attorney can help to file for a partition while protecting the interests of the parties and the value of the property with appraisal and land use planning.
Florida recognizes tenancy by the entirety for married couples owning property. If a couple owns the property as tenants by the entirety, then they must wait for their divorce decree before the court can order a partition action. Married couples are not able to file for a partition action of marital property.
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