Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance on your situation.
Detailed Answer
In Illinois, a partition action lets co-owners divide or sell real property when they cannot agree on its use. Under 735 ILCS 5/15-1, any co-owner—whether joint tenant or tenant in common—may file a petition for partition in the circuit court. 735 ILCS 5/15-1.
If you and your spouse hold property as tenants in common, you may file a partition action any time—even after separation and before final divorce. However, if the property qualifies as marital property under the Illinois Marriage and Dissolution of Marriage Act, the family court has exclusive authority to divide it in your divorce case. Marital property includes assets acquired during marriage and owned jointly, regardless of title. See 750 ILCS 5/503.
Key considerations:
- If the divorce petition is pending, the divorce court often stays parallel partition actions to avoid conflicting rulings.
- Filing a partition action may increase legal costs and delay your divorce property settlement.
- A partition judgment can result in a forced sale, with proceeds split according to ownership shares.
Hypothetical: Amy and Ben purchased a rental house as tenants in common. They separate and Amy files for partition under 735 ILCS 5/15-1 to force sale. Ben responds that the property is marital and must be divided in their divorce. The court may stay Amy’s partition until the divorce court resolves property division under 750 ILCS 5/503.
Helpful Hints
- Review your deed: confirm whether you and your spouse hold title as tenants in common or joint tenants.
- Discuss potential stays with your attorney: a divorce judge may pause a partition until property division is complete.
- Consider mediation: spouses often settle property division faster through negotiation than through partition litigation.
- Track expenses: partition actions can trigger appraisals, surveys, and court costs that affect your net recovery.
- Plan timing: weigh the benefits of partition now versus asking the divorce court to divide the same asset later.