Disclaimer: This article is for informational purposes and does not constitute legal advice. Consult a qualified attorney for advice specific to your situation.
Detailed Answer
In Georgia, when you and your spouse own real property together, each of you holds an undivided interest. Separation does not end that co-ownership. Under Georgia Code § 44-6-150 et seq., any co-tenant may file a partition action in superior court to divide or sell the property.
To start, you file a complaint for partition in the superior court of the county where the land lies. The court will either:
- Order a physical division of the land into separate parcels reflecting each owner’s share; or
- If division in kind is impractical, order a public sale and distribute proceeds according to each co-tenant’s interest.
Filing for partition does not require a final divorce decree. A pending divorce does not block your right to partition. However, partition only addresses how the land is split or sold—it does not determine the equitable distribution of marital assets. The divorce court retains authority over how marital property (including proceeds from a partition sale) is divided between spouses. If you partition first, the divorce court may adjust allocation of other assets to achieve a fair overall division.
Before filing, consider whether negotiating a property settlement within your divorce might be faster and less costly than a partition lawsuit. If you and your spouse agree on how to split or sell the home, you can submit that agreement to the family court for approval as part of your divorce.
Statute Reference: Georgia Code § 44-6-150 et seq. (Partition of real property). See O.C.G.A. § 44-6-150.
Helpful Hints
- Partition actions proceed in superior court under O.C.G.A. § 44-6-150 et seq.
- You do not need to wait for a final divorce to file for partition.
- Partition divides property; divorce court handles equitable distribution of all assets.
- Negotiate a settlement agreement to avoid litigation costs and delays.
- Account for appraisal fees, commissioner fees and court costs when planning.