When it comes to the division of real property interests, significant differences exist between divorce rulings and the partition of real property for non-married partners. These differences arise from the unique legal frameworks and considerations that govern each situation. This article aims to shed light on the contrasting aspects of these two scenarios, highlighting the key distinctions in their legal treatment, entitlements, and outcomes.

Divorce Rulings:

Divorce proceedings involve the dissolution of a legally recognized marriage. During a divorce, the court’s primary objective is to achieve an equitable distribution of marital assets, including real property interests. The key considerations in a divorce ruling regarding real property division typically include the following:

Community Property vs. Equitable Distribution: In jurisdictions that follow the community property principle, marital assets are divided equally between the spouses. However, in jurisdictions that adopt equitable distribution (like Colorado), the court assesses various factors to determine a fair distribution based on the spouses’ respective contributions, needs, and financial circumstances.

Marital Property: Real property acquired during the course of the marriage is generally considered marital property subject to division. This includes properties purchased jointly or individually by either spouse, as long as they were acquired during the marriage.

Valuation and Appraisal: To ensure fair distribution, the court often requires a valuation and appraisal of the real property. Independent experts assess the market value of the property, considering factors such as location, condition, and comparable sales, to determine an accurate value.

Factors Considered: Courts take into account several factors when deciding how to distribute real property interests. These factors may include the length of the marriage, each spouse’s contributions to the acquisition and maintenance of the property, the financial circumstances of each party, and the welfare of any children involved.

Non-Married Partners’ Partition of Real Property:

Partitioning real property for non-married partners involves the separation of jointly owned property or the division of property acquired together during the relationship. Unlike divorce rulings, non-married partners do not have the same legal protections and entitlements. Key distinctions in the partition of real property for non-married partners include:

Lack of Legal Framework: Unlike divorce, which is regulated by specific laws and procedures, the partition of real property for non-married partners falls under general property law principles. This lack of dedicated legislation can result in greater complexities and uncertainties.

Title and Ownership: Establishing ownership and the respective shares of non-married partners is crucial in property partition. If the property is jointly owned, partners may have equal ownership interests unless a different arrangement is documented. However, if one partner holds sole title to the property, the other partner may have limited legal rights in the absence of a formal agreement.

Property Agreements: Non-married partners can enter into cohabitation agreements, domestic partnership agreements, or property ownership agreements to outline the ownership interests and division of property in the event of separation. These agreements can provide clarity and help avoid potential disputes.

Legal Recourse: In the absence of an agreement, non-married partners may need to resort to litigation to resolve property disputes. The legal recourse available will depend on the jurisdiction and the specific circumstances, but it typically involves filing a lawsuit seeking a partition of the property.

Conclusion:

The division of real property interests in divorce rulings and non-married partners’ property partition involves distinct legal considerations and outcomes. Divorce rulings aim to achieve an equitable distribution of marital assets, while non-married partners’ property partition relies on general property law principles. Understanding these key distinctions is crucial for individuals navigating separation or contemplating property ownership with non-married partners, highlighting the importance of seeking legal advice and establishing clear agreements to protect their interests.

One thing for certain, because division of real property (your house) is built into divorce, its part of the process, where partition is a completely separate action to divide real property or sell and divide the proceeds. Which one is harder, or more expensive, depends on many factors. At McMechan Law we handle partitions and often wonder why partners buy a house with the intention of marrying later. Partition definitely favors the more powerful member of the partnership, while divorce seeks equitable division of all property. Divorce protects the less powerful member of the partnership.