Co-ownership with a divorcing couples presents a challenge to force the sale of a property when a co-owner wants out due to the high burden of Family Code § 2108. This is where a partition action often becomes the more powerful legal tool.
What Does Family Code Section 2108 Do?
California Family Code Section 2108 provides that:
“At any time during the proceeding, the court has the authority, on application of a party and for good cause, to order the liquidation of community or quasi-community assets so as to avoid unreasonable market or investment risks, given the relative nature, scope, and extent of the community estate.”
This means:
- A sale is not automatic.
- A third party co-owning with the divorcing spouses or a divorcing spouse cannot force a sale simply because they want it sold.
- The court must find good cause, often tied to avoiding unreasonable financial or market risk.
A family court may consider ordering a sale if:
- The property is at risk of foreclosure
- The parties cannot afford mortgage or carrying costs
- The asset is rapidly declining in value
- There is significant financial exposure if the property is retained
Importantly, Section 2108 governs liquidation before judgment in a family law case in California. At the time of final judgment, family courts retain broader authority to divide property, which may include ordering the sale of real estate to effectuate an equal division.
Needless to say, family courts are cautious. They prioritize equitable division over immediate liquidation- a struggle when third parties such as parents of one of the divorcing spouses is on title to the real estate, usually the marital residence.
Why Partition Actions Are Often the Better Solution
Unlike family court proceedings, partition law provides a much more direct and reliable path to selling property that is co-owned by someone other than the divorcing couple.
Under California law, a partition action is a matter of right for co-owners of real property. (Code Civ. Proc., § 872.710.)
This creates a critical distinction:
- In family court, you must prove financial risk to force a sale
- In a partition action, you generally have the right to force a sale, no risk required
This is why many co-owners, including divorcing or formerly married couples, turn to partition actions when they cannot reach an agreement.
Partition shifts the focus from justification to resolution.
When Partition Becomes Necessary in Divorce Situations
Partition actions commonly arise in connection with divorce when:
- A third party co-owner is joined in the family court action where the family court takes no interest in selling the property
- The family court declines to order a sale under the standards of Family Code § 2108
- One party refuses to cooperate with selling the property
- The divorce judgment leaves the property jointly owned
- One party cannot refinance or buy out the other
- Disputes continue long after the divorce is finalized
Third parties who co-own with a divorcing couple would be wise to contact a partition attorney to help end the co-ownership promptly.
When Co-Ownership Continues After Divorce
Even after a divorce is finalized, former spouses sometimes remain co-owners of real property if:
- The property was not sold during the case,
- One party could not refinance or buy out the other, or
- The judgment left ownership unresolved or deferred.
When that happens, disputes over sale, use, or management of the property may arise—and Family Code § 2108 no longer applies. Importantly, once a divorce is complete, Family Code § 2108 no longer applies, but the right to partition remains.
Key Takeaways: Family Code 2108 vs. Partition Actions
- Family Code § 2108 governs when a court may order the sale of property under family court rules, but only to avoid unreasonable market or investment risks, meaning that family courts do not automatically order liquidation of real estate.
- Partition actions offer a separate legal mechanism that may allow a co-owner to force a sale more directly without regard to whether one party wants it or not.
Take Control of Your Property Dispute with a Partition Action
If you are stuck in a dispute over selling property jointly owned with a married couple, understanding the difference between family court limitations and partition rights can make all the difference.
At Talkov Law, our team of twelve partition attorneys handles every aspect of the partition process, from filing the partition lawsuit to forcing the sale and resolving financial claims between co-owners.
If you are dealing with a property dispute during or after a divorce, we can help you take control of the situation. Call (877) PARTITION (727-8484) today to speak with a California partition attorney and explore your options.
