Detailed Answer

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance on your specific situation.

In Virginia, spouses who own real estate together can seek to partition that property even if they have separated but have not yet finalized their divorce. Partition is a civil action that allows co-owners to divide or sell property and distribute the proceeds. This process is distinct from divorce proceedings and follows the rules in the Virginia Code.

1. Partition Under Virginia Law

Under Virginia Code § 8.01-69, any person who owns real property with others as tenants in common or joint tenants may file a lawsuit in circuit court to partition that property. The court may order a physical division of the land if it can be done fairly, or it may order a sale and then distribute the proceeds among the owners according to their ownership interests.

Read the statute: Va. Code § 8.01-69.

2. Timing: Separation vs. Divorce

Separation alone does not prevent you from filing for partition. You do not need a divorce decree or pending divorce action to initiate partition. However, once you file for divorce and the court issues temporary orders (e.g., regarding possession of the marital home), the divorce court may restrict your ability to transfer or divide property until the equitable distribution phase of the divorce under Va. Code § 20.2-107.3.

Learn about equitable distribution: Va. Code § 20.2-107.3.

3. Effects on Divorce and Equitable Distribution

If you partition property before filing for divorce, the court will treat the partitioned interests as your separate property unless you agree otherwise. But if you partition after filing a divorce suit, the divorce court may treat proceeds or redistributed interests as marital assets subject to equitable distribution. That could alter the division of other assets.

4. How to Proceed

Determine ownership form: Confirm you and your spouse hold the property as tenants in common or joint tenants.
Attempt agreement: Consider negotiating a written separation agreement that divides property to avoid litigation.
File a partition suit: If you cannot agree, file a petition in the circuit court of the county where the property lies under Va. Code § 8.01-69.
Attend hearing: The court will hear evidence on fair division or sale and issue an order.
Follow court order: Implement the division or sale as directed by the judge.

5. When to Consult an Attorney

Partition actions can have complex tax and practical implications. An attorney can help you:

Understand how partition affects your divorce settlement.
Draft separation agreements that reflect your goals.
Navigate court procedures for partition suits.

Helpful Hints

Review your deed to confirm how you hold title (joint tenancy vs. tenancy in common).
Consider a written separation agreement to allocate property without court intervention.
Be aware that partition proceeds may affect alimony or child support calculations.
Check for any temporary restraining orders from the divorce court before filing for partition.
Keep clear records of all communications about property division with your spouse.
Factor in closing costs and appraisal fees if a sale is ordered.
Ask an attorney about tax consequences of selling jointly owned real estate.