Detailed Answer
When you still co-own real property with an ex in California and you want to force a sale or otherwise divide the property, you have a few paths. Which one applies depends on whether the family court already divided the property in your divorce judgment, how the deed and title are held (joint tenants vs tenants in common), and whether you and your ex can reach a voluntary agreement.
1) Check the divorce judgment first
If the divorce decree or judgment already awarded the property to one spouse (or otherwise assigned interests), that judgment controls. The spouse who the court awarded the property to can ask the family court to enforce the judgment and order the transfer of title or payment. If the other party refuses to comply, you can seek enforcement remedies from the family court, including orders to transfer title or a money judgment. (For how California divides community property at divorce, see California Family Code §2550: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2550&lawCode=FAM.)
2) Negotiate a voluntary buyout or sale
Often the least costly option is negotiation. Typical voluntary options include:
- One co-owner buys out the other by paying an agreed amount (often using a refinance or new mortgage).
- Co-owners jointly list the property and sell it to a third party, then split the proceeds per agreement.
- Enter mediation or settlement negotiations to allocate proceeds, offset liens, or adjust for contributions and improvements.
Voluntary solutions let you control timing, price, and cost allocation. They also avoid court costs and uncertain outcomes.
3) File a partition action in superior court (forced judicial solution)
If negotiation fails, California law allows any co-owner of real property to file a partition action to force a physical division or a sale. The statutory basis for the right to seek partition is in the California Code of Civil Procedure; for example see CCP §872.010: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=872.010&lawCode=CCP.
Key points about partition actions:
- Who may file: Any joint owner or tenant in common can sue for partition.
- Partition in kind vs partition by sale: The court will try to divide the property physically (partition in kind) if it is practical. If a physical division is not feasible or would be impractical or inequitable, the court will order a sale and divide the proceeds among the owners.
- Procedure and remedies: The court may appoint a referee or receiver to handle the division or sale. The sale can be a public auction or a private sale approved by the court. Costs of sale, liens (mortgages), and attorney/referee fees are paid out of proceeds before distribution.
- Allocation of proceeds: The proceeds are divided according to each party’s legal interest (e.g., percentage shares, plus credits for liens, agreed contributions, or liens recorded against one owner’s interest).
- Effect on mortgages and liens: Partition does not eliminate mortgage liens — the mortgage follows the property. A purchaser at a partition sale typically takes subject to existing recorded liens unless the sale provides for their payoff from proceeds.
Because the partition process involves litigation, it can be expensive and take months to over a year depending on complexity.
4) Consider foreclosure, quiet title, or enforcement alternatives (when other encumbrances exist)
If the other co-owner has defaulted on obligations secured by the property (for example, mortgage payments that risk foreclosure), you may have other remedies such as paying the obligation and seeking contribution, or pursuing quiet title or indemnity. The specific strategy depends on title type and debt arrangements. These are fact-specific and usually require legal counsel.
5) Practical considerations and timeline
- Documentation: Gather the deed, divorce judgment, settlement agreements, mortgage statements, tax bills, and proof of improvements or contributions. These documents matter in court and negotiations.
- Costs and credits: Expect the partition court to deduct costs (legal fees, referee/receiver fees, sale costs) and to account for liens and certain equitable credits before distributing proceeds.
- Tax consequences: A sale or buyout can produce taxable gain. Consult a tax advisor before finalizing large transfers or sales.
In short: first confirm whether your divorce judgment already resolved ownership. If not, try to negotiate a buyout or sale. If negotiation fails, you can file a partition action under California law to force physical division or sale. Partition is the primary judicial remedy to force sale or division of real property co-owned after a divorce.
Relevant statutes: California Family Code §2550 on division of community property: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2550&lawCode=FAM. Right to partition under the Code of Civil Procedure: CCP §872.010: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=872.010&lawCode=CCP.
When to get a lawyer: If your ex will not cooperate; if the divorce judgment conflicts with current title; if large liens or complex ownership claims exist; or if you need help enforcing a family court judgment. A real property or family law attorney can explain procedure, file partition or enforcement actions, and represent you in court.
Helpful Hints
- Locate and keep copies of the deed, divorce judgment, property tax bills, mortgage statements, and any written settlement or trade-off agreements.
- Try mediation or collaborative negotiation before filing suit — it is usually faster and cheaper.
- If you intend to buy out your ex, get a loan pre-approval first so you know your financing options.
- Ask for a title report to check liens, mortgages, and how title is held (joint tenancy vs tenants in common).
- Be realistic about timelines and costs for a partition action — litigation is often costly and can take many months.
- Consider the tax impact of a sale or transfer; consult a CPA or tax attorney about capital gains and basis adjustments.
- If the divorce order awarded the property to you but the deed still lists both names, ask family court to enforce the judgment and order the deed transfer.
- Document all communications with your ex about the property. Clear written records help in negotiation or in court.
Disclaimer: This article explains general California law and common options for resolving co-ownership disputes after divorce. It is for educational purposes only and is not legal advice. For advice tailored to your facts, consult a licensed California attorney.