Disclaimer: This article is for informational purposes only and is not legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
Under Kentucky law, a court-ordered partition divides property held by two or more parties who each have a concurrent interest in the same real estate. Partition actions are governed by KRS Chapter 381. Only co-owners holding as tenants in common or joint tenants may force a partition. Spouses in Kentucky typically hold real estate as tenants by the entirety.
1. Why Tenancy by the Entirety Matters
When you and your spouse own property as tenants by the entirety, neither spouse alone can sever or partition the property. Kentucky courts treat this form of ownership as a single legal entity. A unilateral partition action is not available against a co-owner who holds an undivided interest by virtue of marriage.
2. Converting to Tenancy in Common
If both spouses agree, you can convert an entireties estate into a tenancy in common by executing and filing a deed that states your intention. Once converted, either spouse may bring an action under KRS Chapter 381 to partition the property. Without mutual consent, a court will not force conversion outside of divorce proceedings.
3. Division During Divorce
Kentucky’s divorce statute, KRS Chapter 403, specifically KRS 403.190, governs property division at the time of divorce. The family court can equitably divide or assign real and personal property based on factors such as each spouse’s contributions, economic circumstances, and needs. You cannot, however, use a partition action to predetermine your share before divorce.
4. Practical Steps Before Divorce
• Discuss a voluntary agreement with your spouse to sell or divide proceeds.
• Execute a written partition agreement and record it if both parties consent.
• Consult with an attorney about negotiating a property settlement agreement that can be enforced upon filing for divorce.
Summary: If you and your spouse hold property as tenants by the entirety, you cannot unilaterally partition that property between separation and divorce. Your options are limited to mutual agreement on conversion or division, or waiting for a divorce court to equitably distribute the property under KRS 403.190.
Helpful Hints
- Confirm your form of ownership on the deed recorded with your county clerk.
- Review KRS Chapter 381 for partition eligibility.
- Consider mediation to reach an amicable property settlement before divorce.
- Keep clear records of financial contributions to the property.
- Consult a family law attorney to explore conversion or early settlement options.