It is common for our firm to receive questions from a former spouse that was a party to a divorce proceeding that did not divide or partition all of the real estate owned by the spouses. Often, an ex-spouse is surprised to learn they are still on title to real property after a divorce has become final. Most of the time, both former spouses remaining on title is an unintended result caused by an oversight by the former spouses or their divorce attorneys. Any real estate left over from the divorce that was not divided or partitioned in the divorce decree would be held by the former spouses as tenants in common or joint owners. Harrell v. Harrell, 692 S.W.2d 876, 876 (Tex. 1985).
The easiest solution, which assumes both former spouses are cooperative, is for one former spouse to grant their interest to the other former spouse via a deed (This usually takes place in exchange for financial compensation). However, the former spouses are not normally cooperative after a divorce. It is almost always necessary to force a sale of the property via a partition action.
An action for partition in Texas involves a court forcing a property to be physically divided (partition in kind) or if the property cannot be divided equitably, then forcing the sale of a property (partition by sale). Texas Property Code Sec. 23.001 provides the statutory authority for a joint owner to force a division of property and the Texas Rules of Civil Procedure 756-771 provide the procedures by which a partition is to occur. The right of a co-owner to partition a property is an absolute right provided that the party seeking partition is a co-owner and is entitled to possession of the property. Spires v. Hoover, 466 S.W.2d 344, 346 (Tex. Civ. App. 1971), writ refused NRE (July 28, 1971). The law favors partition in kind (the actual physical division into smaller tracts) verses partition by sale (the sale of the property by a receiver or sheriff at a public auction). However, if division into smaller tracts would result in the tracts being worth substantially less than the property as a whole, the court will normally order the property be sold and proceeds distributed to the owners. For example, typical subdivision lots with residential improvements are almost always partitioned by sale. Any of the property owners may bid on the property at the public auction. Ancillary matters to partition lawsuits often include claims for reimbursements for taxes and improvements to the property. Additionally, parties may request accountings for rents and profits associated with the property.
There are several other situations besides post-divorce property ownership where partition actions would be appropriate. Other common situations might include inherited property where one heir might desire to liquidate or cash out of a property or a co-ownership situation where some of the joint owners are no longer happy with the ownership status. Partition lawsuits are complex, and a competent real estate attorney should be employed to navigate any potential partition action.
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