Disclaimer: This is general information, not legal advice. I am not a lawyer. For advice about your specific situation, consult a Massachusetts attorney.
Detailed Answer
If you still co-own real property with your former spouse after a divorce in Massachusetts, you have several legal paths to divide or force the sale of that property. Which path makes sense depends on whether the divorce judgment already resolved the property, the form of ownership (joint tenancy vs. tenancy in common), whether both names remain on title and mortgage, and whether the other co-owner cooperates.
1) Check your divorce judgment and Probate & Family Court orders
If the Probate & Family Court (the court that handles divorce and property orders in Massachusetts) included a specific order about selling, transferring, or awarding the property, you can ask the Probate & Family Court to enforce that order. The Probate & Family Court has authority over post‑judgment enforcement of its orders. See the Probate & Family Court enabling statute: M.G.L. c. 211B.
Typical enforcement tools include motions for contempt, motions for specific performance (asking the court to require the other side to do what the divorce judgment required), or other post‑judgment relief. If the decree required sale and the other party refuses to cooperate, ask the court to enforce the decree.
2) Bring a partition action (force a division or sale)
If the divorce did not resolve the ownership issue, or if both names remain on title and the other owner won’t cooperate, a partition action is the usual way to force a sale or division. In Massachusetts, any co-owner may file an action for partition. The partition statute provides the basis for these cases: M.G.L. c. 240, §1 and related sections.
How partition works in practice:
- The plaintiff files a complaint for partition (usually in Superior Court).
- The court determines whether the property can be divided in kind (each owner gets a physically separate portion) or whether it must be sold and proceeds divided. If the court finds division in kind is impractical, it will order a sale and divide the sale proceeds among the owners. See M.G.L. c. 240, §2.
- The court often appoints commissioners or a referee to prepare a plan of division or to oversee sale.
- Costs of the partition (attorney fees, commissions, costs of sale) are typically charged against the proceeds before distribution, although courts can allocate costs between parties in certain circumstances.
3) Buyout (one owner purchases the other’s share)
A common and often cheaper alternative is a negotiated buyout. One co-owner refinances or otherwise obtains funds to pay the other for their share and then clears title. A buyout avoids court costs, delays, and a public sale. If mortgage liability is an issue, refinancing in one person’s name is often part of the buyout process.
4) Mediation or negotiated settlement
Mediation can produce a tailored agreement (timing, price, who pays what expenses) and often preserves privacy and control. Courts commonly require or encourage attempts at mediation before prolonged litigation.
5) Short-term court relief if you face immediate problems
If the other co-owner is blocking access, removing property, neglecting maintenance, or otherwise creating urgent harm, you can ask a court for temporary orders: exclusive possession, injunctions, or appointment of a receiver to preserve the asset pending final resolution.
6) Practical considerations that affect which option to choose
- If the mortgage remains in both names, a sale or refinance is often necessary to remove one party’s debt and credit exposure.
- Tax consequences: capital gains, basis, and allocation of sale proceeds can matter; consult a tax advisor.
- Timing: a partition action can take many months; expect court scheduling, appraisals, and possibly a public sale.
- Costs: litigation and commission/sale costs reduce net proceeds compared with an amicable sale or buyout.
Where to file
Partition actions are typically filed in the Massachusetts Superior Court under the partition statutes. If your divorce judgment was entered by the Probate & Family Court, enforcement motions return to that court. An attorney can advise the correct court and procedural steps.
Helpful Hints
- Gather documents: deed(s), mortgage paperwork, the divorce judgment and any proposals or prior settlement agreements, property tax records, and a recent title report.
- Review your divorce judgment carefully. If it already addressed the property, enforcement in Probate & Family Court is often faster than a new partition case.
- Consider a buyout offer before filing court papers. Even a simple written buyout agreement can save months and reduce costs.
- Ask about mediation. Many courts and local bar programs offer mediation or settlement services that work faster and cost less than litigation.
- Talk to a Massachusetts attorney who handles partition and family law. Partition practice has local rules and customs; an attorney can explain likely costs and timelines in your county.
- If one owner is refusing to maintain the property or is taking items from the house, document problems (photos, written notices) and raise the issue promptly in court for interim relief.
- Plan for mortgage and insurance responsibilities while ownership remains shared. Even if you are no longer living in the property, your credit and liability can be affected until title and mortgage issues are resolved.
- Expect partition sales to be public and to potentially yield lower net proceeds than a private sale—factor that into your negotiation strategy.
Key statutes referenced: partition procedures under M.G.L. c. 240, §1 and related sections; Probate & Family Court jurisdiction under M.G.L. c. 211B.
If you want, provide basic facts (whether the divorce judgment addressed the property, whether both names are still on title, whether there is a mortgage, and whether the other owner cooperates) and I can explain likely next steps under Massachusetts law and what documents an attorney will ask to see.