Partition of Property Co-Owned with Divorcing Couple (Joinder Family Code § 2021)

Co-ownership disputes are complicated when you co-own with a married couple. However, a forced sale of property owned by a third party and a married couple can be addressed 1) through a partition action filed by any co-owner, or 2) through a family law proceeding if the married couple is divorcing, as explained below.

Purely Community Property Cannot be Partitioned

Code of Civil Procedure 872.210(b) is the partition statute that articulates that property owned solely by married co-owners cannot be partitioned as follows:

“an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.”

Code of Civil Procedure 872.210(b)

This means that married couples cannot use a partition action to evade family courts governed by community property laws involving the division of all marital assets, alone with spousal support and other issues.

Partition Actions Can be Filed Against Married Couples, Even After a Divorce is Filed

The easiest way to resolve a co-ownership dispute involving a third party and a married couple as co-owners is to simply file a partition action.

Indeed, partition law “precludes only severance of the community interests of spouses; it does not preclude partition of other estates or interests in the property that may exist concurrently or successively with the community interests.”^[1]Law Revision Commission Comment to Code of Civil Procedure § 872.210. Family Code doubles down on this conclusion, stating that: “The interests of third parties may be subject to partition pursuant to [the partition statutes in] Title 10.5 (commencing with Section 872.010) of Part 2 of the Code of Civil Procedure.”^[2]Law Revision Commission Comment to Fam. Code § 2650.

This means that a partition action can be filed, even if the co-owners are married, and perhaps divorcing.

Family Courts Can Also Sell Property Co-Owned with the Divorcing Spouses

While a partition action could resolve the co-ownership, family courts may also join the co-owners of real property owned by the divorcing spouses. Indeed, the “superior court, sitting in a dissolution of marriage proceeding, does have jurisdiction to order the sale of community property, including community real property, where such sale is necessary or appropriate to the discharge of its obligations under Civil Code section 4800.”^[3]In re Marriage of Davis (1977) 68 Cal. App. 3d 294, 308–09.

The most significant downside of being joined in a divorce action is that the sale generally will not occur until after a judgment of divorce following a trial based on Family Code § 2108, which provides a high standard to forcing an immediate sale as follows:

“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….”

Family Code Section 2108

In the case of Lee v. Superior Court, California’s appellate court found investment risks that warranted “the sale of the eight-unit apartment building [because it] was ‘necessary to preserve another alleged community asset'”.^[4]Lee v. Superior Court (1976) 63 Cal. App. 3d 708, 719.

Unfortunately, this standard can be hard to meet, making a partition action a faster way to sever the co-ownership with a married couple that is going through a divorce.

Motion for Joinder in California Family Law

Pursuant to Family Code § 2021, “the court may order that a person who claims an interest in the proceeding be joined as a party to the proceeding”, which includes a party who has an interest in the real property subject to family court proceedings.

The “trial court’s exercise of discretion must obviously be reasonable.”^[5]Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 763. Generally, the court orders a person to be joined in “an extremely small number of cases [where] joinder is the only reasonable alternative.”^[6]Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 763.

A California court has found that “a person may be joined ‘who has in his possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.'”^[7]Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 762. This authority enables family courts to join third parties to a divorce matter when selling or dividing marital property.

Such a motion might be filed under California Rules of Court 5.24, which governs how a person claiming interest may file a motion to be “joined as a party to the family law case”. An individual “must be made by serving and filing form a Notice of Motion and Declaration for Joinder (form FL-371).”^[8]California Rules of Court 5.24(d). Properly completing the form will require the following: Identify the party to be joined: Clearly state the name and relationship of the party you want to join … Continue reading

The result will be that the family court may issue a “Summons (Joinder)” on the Judicial Council of California Form FL-375 based on the request submitted on the Judicial Council of California Form FL-371 entitled “Notice of Motion and Declaration for Joinder.”

Opposing a Family Law Joinder to Allow for a Faster Sale in a Partition Action

In many cases, the co-owners who have filed a partition or seek to file a partition action against the divorcing couple will oppose this joinder so that the sale can happen more expeditiously in a partition action. Indeed, even after the family court issues the joinder, a partition action may still be possible and advantageous. To save time and properly assert ownership rights, retaining a partition attorney to help you file oppose the joinder in the family court may be in your best interests.

Talkov Law Partition Attorneys Can Help

Navigating a co-ownership dispute on your own can lead to costly mistakes, delays, and missed opportunities. At Talkov Law, our team of nine full-time partition attorneys is dedicated exclusively to resolving partition actions throughout California. As the state’s leading partition law firm with over 450 cases handled, we know how to protect your rights, maximize your share, and move your case forward efficiently.

For a free consultation, call (844) 4-TALKOV or contact us online today.