Petition to Partition

Whenever a husband and wife acquire property throughout a marriage, this property is jointly owned by the two of them. In the event of divorce, decisions must be made regarding what to do with that property.

There are a number of ways in which a divorcing couple can settle the distribution of shared property in North Carolina. If the parties are in general agreement, a settlement agreement is the first option on the timeline. Mediation can help reconcile any minor disagreements so that the parties can still reach an agreement themselves. If this is not successful, the couple can petition the court to value and divide the joint property fairly between them. However, in order for this to occur one of the parties must file a petition for equitable distribution with the court before the divorce is final. If equitable distribution is not filed for before divorce is finalized, or if the equitable distribution does not address all of the couple’s joint property, a petition to partition might be the last option available to the divorced couple who still cannot agree on what to do with shared property such as the marital home or real estate.

A petition to partition can divide 1) real estate or 2) personal property that is jointly owned by a divorced couple.

Depending on the circumstances of the case, the court will partition the property through 1) physical partition (“partition in kind”), or through judicial/forced sale partition.

A petition to partition is only available as a remedy for individuals that are “tenants in common,” or co-owners, of a piece of property. Creditors to the property can also be included as parties if the property has any liens on it. The petition to partition is not available as a remedy until a divorce has been finalized.

One or both of the parties can file what is called a petition to partition to ask the court to divide the property equitably. The court can then give each party their share of these partitions, or force the sale of the property and apportion the proceeds accordingly.

A petition to partition is considered a special proceeding by our legislature, meaning it follows a different set of procedures. It must be filed with the Clerk of Court in the Superior Court division of the county (or one of the counties) where the real estate is located. The Clerk will act as the judge in the case and will appoint at least three neutral parties called commissioners to oversee the property’s division. Once the petition is filed, the other party will receive written notice of the proceeding.

The commissioners will then facilitate either partition in kind or have the property appraised and sold through judicial/forced sale partition.

For a petition to partition real estate, the commissioners have 90 days after they are appointed to execute the partition and file a full report of their actions with the court.

For a petition to partition other real property, the commissioners have 20 days to divide the property as equally as possible.

If practicable, the commissioners will divide the land into as close to equal plots according to land value as possible and distribute it to the parties in proportion to their investment in and rights to the property. Remember that creditors to the property can be brought as parties to a petition proceeding.

Sometimes, however, it is not practical to “split the baby” when dividing property. A house, for example, cannot usually be split into two. Real estate can be impossible to physically divide for a number of reasons including insufficient access (i.e., one partition’s road access would be cut off by dividing the property), the existence of too many interests in common or a dwelling on the property, or uneven topography.

If the court cannot make an actual partition of the land without causing substantial injury to one of the parties, the court can force the sale of the land and split the proceeds between the parties. In this case the court costs and attorney fees can be taxed against the sale of the real estate and paid from the proceeds.

If you are facing a family law issue such as divorce, it is important to retain an experienced and dedicated family law attorney. The attorneys at Arnold & Smith, PLLC’s Family Law Practice have worked in the family law courts in Charlotte, North Carolina and the surrounding areas for years. Contact us today for an initial consultation with one of our attorneys.