Detailed Answer
In Massachusetts, a partition action allows co-owners of real estate to physically divide property or sell it and split the proceeds. You can start this action regardless of your marital status if you hold the property as tenants in common. (See M.G.L. c.241 §1.)
If you and your spouse hold property as tenants by the entirety, state law treats you as a single legal owner. Neither spouse can force a partition action on property held this way without the other’s consent. A divorce terminates tenancy by the entirety, converting ownership into tenants in common, which then permits partition.
You can file a partition action in the Massachusetts Land Court or Superior Court Land Session. The court will either divide the property in kind or order a sale. Courts consider factors such as parcel layout, marketability, and fairness to each co-owner.
Be aware that divorce proceedings often include temporary orders under M.G.L. c.208 §30 that prohibit the transfer, sale, or encumbrance of marital assets. Violating these orders may result in contempt of court.
During divorce, the court distributes marital property under equitable distribution rules. (See M.G.L. c.208 §34.) A partition action before the divorce may affect how the court allocates property and could complicate settlement negotiations.
Helpful Hints
- Review your property deed to confirm your form of co-ownership.
- Check for any temporary orders in your divorce case before filing for partition.
- Consult a real estate attorney about timing partition vs. divorce settlement.
- Gather relevant documents, including deeds, mortgage statements, and separation agreements.
- Consider mediation to address property division before litigating.
Disclaimer: This article is for educational purposes and does not constitute legal advice. Consult a qualified attorney before making decisions about partition actions or divorce proceedings.