Detailed Answer
After separating but before legally divorcing, you may consider filing a partition action in Idaho to divide real property owned with your spouse. A partition action lets co-owners physically split property or sell it and share the proceeds.
What Is a Partition Action?
A partition action is a lawsuit allowing co-owners of real property to divide or sell property and distribute proceeds. Under Idaho Code §6-301 (Idaho Code Title 6, Chapter 3), any co-owner can file a petition for partition without the other owner’s consent.
Requirements to File for Partition
To file for partition in Idaho, you must:
- Hold property as tenants in common or joint tenants.
- Own real property located in Idaho.
- Have a legal interest in the property.
How a Partition Action Interacts with Divorce Proceedings
While a partition action addresses ownership of specific real property, a divorce court handles division of all marital assets under Idaho Code Title 32, Chapter 7 (I.C. Title 32, Chapter 7). Filing a separate partition suit may lead the divorce court to stay the partition until the final decree. Conversely, the divorce court could incorporate the partition into its property division. Idaho Code §32-719 prohibits transferring or disposing of marital assets before the final divorce decree without court approval.
Steps to Initiate a Partition Action
- Prepare and file a petition in the district court where the property is located. (See I.C. §6-303, Title 6, Chapter 3.)
- Serve your spouse and any other co-owners according to Idaho Rules of Civil Procedure. (See I.C. §6-305.)
- Request an order for partition in kind, or sale and distribution if division in kind is impractical. (See I.C. §6-315.)
- Attend hearings; the court may appoint a referee to manage the sale or division. (See I.C. §6-316.)
Disclaimer: This article is for informational purposes and does not constitute legal advice. Always consult a qualified attorney for advice specific to your situation.
Helpful Hints
- Review your deed to confirm if you own as tenants in common or joint tenants.
- Evaluate how a partition action might affect your divorce property division.
- Gather title documents, mortgage statements, and tax records before filing.
- Consider the cost and time of parallel partition and divorce proceedings.
- Consult a local attorney for complex valuation, tax, or procedural issues.