Partition Actions: Dividing Property in Tennessee
Tennessee law provides that if co-owners cannot agree on how to sell, manage, or use a co-owned property, and no alternative resolution can be reached, then a partition action might be filed with the court. But what is a partition action? What types of partitions are there, and what is a viable alternative?
What is a Partition Action?
A partition action is a lawsuit that might be filed if co-owners own interest in property and cannot agree on how to use, manage, or sell the property. For example, let’s say that you and your soon-to-be-former spouse bought a vacation rental home together. Now that a divorce is on the horizon, one spouse wants to move into the vacation rental home full-time. But the other spouse is opposed – after all, they were enjoying the regular rental income that the vacation home had been generating. What interest does one co-owner have? What about the interests of the other? How do you divide this property?
If the co-owners cannot come to an agreement, then a partition action can be filed.
Tennessee law does not require anyone to continue owning a jointly-held property. Whether that is tied to a former spouse or not. However, if you cannot agree with your co-owner on an exit strategy then a partition lawsuit can be filed with the court. The partition action orders how the property will be divided.
Types of Partition Actions
The Tennessee courts have two ways they might partition a property. Either a partition “in kind,” or a partition “by sale.” Which option is right under your circumstances will depend on the specific facts in your own unique case. Divorce actions involving multiple pieces of property can be particularly tricky, but an esteemed divorce and property division attorney can assist.
- PARTITION “IN KIND”
If a Court partitions a piece of property or land “in kind,” it means that the property or land at issue is to be physically divided between the co-owners. For example, say that two people co-own a 10-acre plot of land. A partition in kind will likely divide the property in half, granting 5 acres to one spouse and 5 acres to the other.
This form of partition will largely not work for a common asset to be divided in a divorce – the marital home. For obvious reasons, in most circumstances it would be impossible to split the interest in a single family home via a partition in kind.
- PARTITION “BY SALE”
A partition “by sale” is a court order to sell the property at issue and fairly distribute the proceeds of the sale to the respective parties.
Tennessee law states that a person is entitled to a partition by sale if:
- The property is situated in such a way that it cannot be divided, or
- Selling the property, instead of dividing it, would be to the advantage of the parties. For example, the above conundrum of how to “split” a single-family home down the middle. The court would not do that – instead, they would likely order the property to be sold.
Readers should not take this to mean that a co-owner who is subject to a partition by sale must lose their interest in the property. Indeed, it is incredibly common in cases of divorce for one party to “buy out” the other. All this would mean is that you pay your spouse the value of their interest in the property. This would allow one spouse to become the sole owner, and the other to receive the benefit of their monetary interest in the property.
Divorce and potential Partition Lawsuit? Fort, Holloway & Rogers Can Help.
Filing a partition lawsuit does not need to be the first step taken – often, property division issues can be worked out through mediation and discourse between the spouse’s attorneys. The esteemed Franklin property division attorneys at Fort, Holloway & Rogers are experienced at helping clients find ways to a solution without the necessity of filing a lawsuit. However, our team is prepared to go to bat and handle any partition action that might be necessary. Contact us today to see how we can help.
Sources:
newsweek.com/unmarried-couples-buying-homes-trapped-legal-1865850
courthousenews.com/partitioning-embryos-couple-battles-over-microscopic-property-rights/
