Detailed Answer: Partitioning Property in New Hampshire
Disclaimer: This information is for educational purposes only and does not constitute legal advice.
Under New Hampshire law, co-owners of real property may seek a court-ordered partition unless state law or a deed restriction prevents it. However, when spouses hold property as a tenancy by the entirety, neither spouse can force partition on their own before the marriage ends.
Co-Ownership Types in New Hampshire
Spouses may hold property in one of three ways:
- Tenancy in common: Each owner has an undivided share and may file for partition independently. See RSA 547:1.
- Joint tenancy: Owners share equal interests with rights of survivorship. Any joint tenant can sever the joint tenancy and convert it to a tenancy in common, then seek partition.
- Tenancy by the entirety: Only spouses can hold property this way. Neither spouse alone can partition, sell, or transfer their interest absent the other’s consent. See RSA 540:3.
Filing a Partition Action
If property is held as a tenancy in common or as severed joint tenants, any co-owner can petition the Superior Court for partition. The court may order a physical division (partition in kind) or a sale with proceeds distributed among owners. See RSA 547:2 and RSA 547:12.
In divorce proceedings, New Hampshire uses equitable distribution for property division. Courts consider factors in RSA 458:16-b, which may include contributions by each spouse, duration of the marriage, and the value of retirement benefits.
Partition Before Divorce
During separation and before a final divorce, you cannot unilaterally partition property held as a tenancy by the entirety. To divide such property, you must either:
- Obtain your spouse’s written consent to partition or transfer the property; or
- Wait until the court grants a divorce or legal separation and addresses property division in the judgment.
Helpful Hints
- Confirm your ownership type by reviewing the deed or title report.
- Discuss a voluntary partition or sale with your spouse to avoid lengthy court battles.
- Keep all agreements in writing and signed by both parties.
- Consult a qualified real estate attorney to understand your rights and procedural steps.
- Explore mediation or collaborative law to reach a cost-effective settlement.