Detailed answer — what happens and why

Partition actions require the court to join all persons with an ownership interest in the property. When some owners or heirs are unknown, unborn, incapacitated, or cannot be located, Colorado courts still must satisfy constitutional due-process rules before depriving anyone of property or money.

To meet those requirements, Colorado practice typically follows these steps:

1. Good-faith effort to locate the missing parties. The party seeking partition must show the court they conducted a reasonably diligent search. This may include searching public records (deeds, probate and genealogical records), contacting known family members, inspecting the county assessor’s records, using online databases, and preparing sworn affidavits describing the efforts.
2. Alternate notice (if the person still cannot be found). If the court approves that the missing owner cannot be personally served, it may allow notice by publication or other substitute service methods under the Colorado Rules of Civil Procedure so the court can acquire jurisdiction over the absent owner or heir.
3. Appointment of a guardian ad litem or attorney ad litem. When interests of minors, incapacitated persons, or unknown and unlocated parties are at stake, the court may appoint a guardian ad litem (GAL) or an attorney ad litem to represent them and protect their interests in the litigation. The appointment safeguards the absent parties and allows the case to proceed.
4. Resolution and binding effect. If the court provides the required notice and representation, a final partition decree (including sale or allocation of proceeds) will generally bind those absent owners or heirs. The court’s appointment and proper notice protect the court’s order against later attack for lack of notice.

Colorado’s civil rules govern representation of infants and incompetents. See the Colorado Rules of Civil Procedure, particularly the provisions addressing representation of persons under disability and service/notice procedures. For the court’s rules and procedures, consult the Colorado Rules of Civil Procedure on the Colorado Judicial Branch website: https://www.courts.state.co.us/Courts/Rules/

Because partition often requires distributing or selling real property and dividing proceeds, courts are especially careful to ensure absent owners receive adequate protection. Where the absent party is unknown or unlocatable, appointment of a GAL or attorney ad litem plus publication or other substitute notice is a common route to satisfy due process.

Hypothetical example (illustrates typical court process)

Imagine you and two siblings own a cabin as tenants in common. One sibling dies leaving possible children, but their heirs cannot be located. You file a partition action asking the court to sell the cabin and divide proceeds. Before the court sells the cabin, it will require that you try to locate the heirs. If you cannot find them, the court will likely allow notice by publication and appoint a guardian ad litem or attorney ad litem to represent the unknown heirs. The GAL will review the file, look out for the absent heirs’ rights, and either negotiate a settlement or participate in the sale process. If the court follows these procedures, its final decree dividing proceeds typically binds the absent heirs.

How to ask the court to appoint a guardian ad litem (practical steps)

1. File the partition complaint and identify all known owners and heirs.
2. Include an affidavit describing your due diligence to find the missing person(s).
3. File a motion asking the court to permit substitute service (for example, service by publication) and to appoint a guardian ad litem or attorney ad litem for any unknown, unborn, or unlocated interest holders.
4. Propose a reasonable proposed order and, if required by local practice, a suggested nominee for appointment or ask the court to appoint the county or a competent attorney to serve as ad litem.
5. Provide the court with information about anticipated costs for publication and any GAL fees so the court can decide who will pay those fees (often the plaintiff/petitioner initially, with possible allocation later).

Local practice and judicial preferences vary across Colorado judicial districts. Some courts appoint an attorney ad litem (a lawyer to represent absent interests), while others appoint a non-lawyer guardian ad litem for minors or incapacitated persons and appoint counsel when legal issues require a lawyer.

Common court requirements and outcomes

• Courts expect a clear record of the search efforts to locate missing owners before allowing substitute service or appointment.
• Substitute notice by publication typically has strict timing and content requirements; follow the court’s order precisely.
• Appointment of a GAL does not automatically grant the GAL power to settle without court approval; the GAL must act in the absent party’s best interest and often must obtain court approval for settlements or distributions affecting the absent party’s rights.
• If notice and representation meet due-process standards, the final partition decree and division of sale proceeds will usually be binding on absent heirs or owners, protecting the parties who proceed through the process.

Helpful links

• Colorado Rules of Civil Procedure (rules and PDFs): https://www.courts.state.co.us/Courts/Rules/
• Colorado Judicial Branch information and local court contacts (for local forms and filing procedures): https://www.courts.state.co.us/

Helpful Hints

• Document every search step: dates, sources checked, phone calls, and names contacted. Courts expect a detailed affidavit of search efforts.
• Check county recorder, assessor, probate files, obituaries, social media, and genealogy sites to locate possible heirs before asking for publication notice.
• Ask the court early about local practice: some districts require a specific motion form or a proposed GAL list.
• Be prepared to cover upfront costs for publication and GAL fees; the court may later reallocate costs when it divides proceeds.
• If the absent party later appears after a decree, their ability to challenge the decree is limited if the court provided proper notice and representation.
• Consider hiring counsel experienced in Colorado partition practice. They can draft the required affidavits and motions and navigate local rules about GAL appointments and publication notice.