Family Law/Divorce Law Blog, Vol 1. 6
February 19, 2017
by Craig Franklin Chambers, Esquire
The Littleton Lawyer
As a Divorce, Marital, and Family Law attorney, practicing in Lakewood, South Jeffco, Littleton, Ken Caryl, Roxborough, Denver, Highlands Ranch and the surrounding areas, I run into unmarried couples who jointly own a home or other real estate.
When a married couple owns a home, and the couple divorces, the domestic statutes apply, and the interests of the parties in the home are protected and litigation in the divorce proceedings.
When the couple is unmarried, and the couple separates, the domestic statutes apply to issues of children of the relationship, but do not apply to property division; and the recourse to settle disputes over the property are brought in a Partiton Action made pursuant to C.R.S. 38-28-101.
This situations occurs, for example, if couple jointly owns a home, and upon separating, can’t agree on whether to sell the property, how to sell the property, how to divide the proceeds, or the terms of sale.
In filing the partition action, the first thing to remember is that all parties of interest need to be joined in the action. That includes the Homeowner’s Association, lenders, etc. If a party is not jointed, the case will likely be continued until all of the parties are joined.
The second thing, once the parties are joined, the court will first determine if the property can be divided equally and fairly, without manifest prejudice to the parties. If the property cannot be divided fairly – for example, in the case of a residential home or a condo – the court will order the property sold and the proceeds divided in proportion to the parties’ interest in the property.
The third thing, along with the proceeds being divided in accordance to the parties interest in the property, the court will make adjustments to the parties proceeds based on contributions that the made to preserve and protect the property.
These adjustments can be contentious. One party may claim the repairs made to the home by the other were unnecessary or too costly. Because of this, although a partition action is usually a question of math as to who contributed what to the property, the cases can be expensive.
My best advice is to either: reach a written partnership agreement regarding how to dispose of the property is the couple separates prior to buying the property ; Or cooperate with the other co-owner and agree on a realtor to sell the property
The court can’t change the proportional interest you have in the property. The court can't refuse to sell the property if you have interest in the property. All the judge can do is either divide the property or order it sold, making adjustments for the parties contributions as the court deems fairs and equitable.
In most case, the cost of the partition action will far exceed the benefits you might receive from the court.