Detailed Answer
Under New York law, partition actions allow co-owners to divide or sell real property. However, married couples typically hold real estate as tenants by the entirety. This form of ownership cannot be broken by a partition suit. Only if you and your spouse hold property as tenants in common or you own an individual share can you bring a partition action.
Ownership Type Matters
If the property is held as tenants by the entirety—which applies to most real estate acquired during marriage—neither spouse can sue the other for partition. See N.Y. Real Property Law §291. If you hold title as tenants in common, you may commence a partition action under Real Property Actions and Proceedings Law §901.
Procedure for a Partition Action
- File a claim in Supreme Court locating the property (RPAPL §901).
- Serve the complaint on all co-owners, including your spouse.
- Court appoints commissioners to assess the property and propose division or sale.
- If division is impractical, the court orders a sale and divides proceeds according to ownership shares.
Timing Considerations Pre-Divorce
Even before divorce, you may file a partition action if title allows. But a separation agreement or pendente lite order may limit your ability to use or transfer marital assets. Always review any court orders or agreements governing property use.
Alternative Paths
If a partition action is unavailable, consider negotiating a separation agreement or using matrimonial divorce courts to address property distribution. In a divorce action, the court can allocate the marital home or order its sale under Domestic Relations Law §236(B)(5).
Key Takeaways
- Partition suits work only if you hold property as tenants in common.
- Tenancy by the entirety (most married couples) blocks partition actions.
- Review existing court orders or separation agreements before filing.
- Divorce court can distribute or order sale of the marital home.
Disclaimer: This article is for educational purposes and does not constitute legal advice. Consultation with a qualified attorney is recommended to address your specific situation.
Helpful Hints
- Verify your title status at the county clerk’s office.
- Check for any pendente lite or support orders affecting property use.
- Discuss amicable property division with your spouse to avoid litigation.
- Keep detailed records of payments and contributions to the property.
- Consult a family law attorney for guidance tailored to your circumstances.