Detailed Answer
Under California law, spouses who own real property together—whether as community property or as tenants in common—have the right to partition that property at any time, including after separation but before a divorce judgment. Partition is a civil action under Code of Civil Procedure section 872.010 et seq. You can either:
- File a partition lawsuit in superior court. The court will order either a division of the land into separate parcels or a sale of the property and distribution of proceeds among co-owners.
- Enter into a written agreement with your spouse dividing the property by mutual consent. You then record deeds transferring the agreed portions.
However, property held in community during marriage remains community property until the date of divorce. Even if you partition or sell the property, the Family Law court retains authority to divide community assets under Family Code section 2550. This means that a partition judgment or private deed may not finally resolve your property rights until the divorce is finalized. The court may adjust the division if it finds the partition circumvented equitable distribution principles.
Key points to consider:
- Partition actions are available to co-owners without regard to marital status.
- Partition by agreement (written and recorded) can bind the parties if it complies with statute and public-record requirements.
- The divorce court has exclusive power over community property division and can override private partitions that conflict with equitable distribution.
- Unilateral partition can lead to extra litigation: the partition suit and any property division issues in the divorce.
Before initiating a partition action or drafting an agreement, consider negotiating a separation agreement or request the family court to enter interim orders that allocate property. This approach can streamline the eventual divorce property division and reduce court costs.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed California attorney for advice specific to your situation.
Helpful Hints
- Review your title: confirm how you and your spouse hold title (community property vs. tenants in common).
- Discuss a written partition agreement to avoid litigation costs.
- File your partition suit in the same county where the property is located.
- Include all co-owners in the action to avoid later disputes.
- Keep the divorce court informed of any partition agreements or judgments.