Detailed Answer

If you and your spouse co-own real property in Oregon, you may consider a partition action to divide or sell that property after separation but before your divorce is finalized. Under Oregon law, any co-owner can file a partition suit, regardless of marital status, to sever legal co-ownership and force a physical division or sale of the land. However, once a divorce petition is filed, the family court gains authority to equitably distribute marital assets, which can affect or stay a separate partition action.

1. Oregon Partition Actions (ORS Chapter 105)

ORS Chapter 105 governs partition of property. Key provisions include:

• ORS 105.005: Defines who may bring a partition action — essentially any co-owner of real property. ORS 105.005
• ORS 105.030: Authorizes the court to divide the property physically if practicable or order a sale and division of proceeds. ORS 105.030
• ORS 105.130: Details the procedure for selling property at auction and distributing net proceeds. ORS 105.130

To start a partition action, file a complaint in the county where the land lies, serve your spouse, and follow the Oregon Rules of Civil Procedure (ORCP) for service and notice.

2. Impact of Divorce Proceedings

Once a divorce petition is filed, the circuit court obtains exclusive authority to divide marital property under ORS 107.105. That means:

• The divorce court can equitably distribute all assets and liabilities, including real estate.
• A separate partition action may be stayed or consolidated into the divorce case to avoid conflicting rulings.

Divorce courts follow ORS 107.105, which directs equitable division of property, rather than strict co-owner rights. If you file partition before divorce, your spouse could move to stay the action once divorce starts.

3. Practical Considerations

• Title Tenure: Oregon does not recognize tenancy by the entirety. Married couples typically hold property as tenants in common or joint tenants. Both forms allow partition.

• Timing: If you want to avoid the divorce court’s control, file a partition action before filing for divorce. However, consider that partition may trigger a sale you might not desire.

• Costs & Delays: Partition suits involve appraisal, survey, and possibly auction costs. Divorce proceedings carry their own expenses.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult an attorney licensed in Oregon to discuss your specific situation.

Helpful Hints

• Review your deed to confirm how you and your spouse hold title.
• Consider mediation with your spouse before filing any suit to reduce costs and delay.
• Weigh the benefits of physical division versus ordering a sale and dividing proceeds.
• File partition promptly if you prefer co-owner rights over divorce asset division.
• Keep detailed records of property improvements, expenses, and contributions.