A divorcing spouse cannot use a partition action to divide community property, but almost every other co-owner in a family dispute can. California Code of Civil Procedure section 872.210(b) (CCP 872.210(b)) sends community property between spouses to the family court. Former spouses who still co-own after the divorce judgment, unmarried partners, spouses who hold the property as separate property, and anyone who co-owns with a married couple can file a partition action to force the sale or buyout of the property, without the other owner’s agreement.
This comes up most often after a breakup: a divorce judgment that left the house in both names, unmarried parents fighting over custody while both sit on the deed, a restraining order that put one co-owner out of the home, or a relative who co-owns with a married couple that is now divorcing. See our posts on ex-boyfriend and ex-girlfriend property disputes and partitions between family members.
Talkov Law handles one side of these cases: the real estate. We do not handle divorce, custody or support. When those issues are also in play, we work alongside your family law attorney so that the sale or co-owner buyout fits the rest of your case.
Spouses Cannot Partition Community Property: The Family Court Divides It
Spouses cannot use a partition action against each other to divide their community property. CCP 872.210(b) provides:
Notwithstanding subdivision (a), 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 section 872.210(b) (added by Statutes 1976, chapter 73)
So if you and your spouse own the family home as community property and you are divorcing, the family court divides it. A divorcing spouse who wants the house sold before the divorce is final generally has to ask the family court under California Family Code section 2108, which allows a sale before judgment only for good cause, such as avoiding unreasonable market or investment risks. Our article on section 2108 explains why that standard is harder to meet than the partition standard.
Which Court Decides What Happens to the House
| Situation | Who decides the property | Why |
|---|---|---|
| Spouses dividing community property | Family court | CCP 872.210(b) bars partition between spouses |
| Former spouses still on title after the divorce judgment | Partition action | The property is no longer community property |
| Spouses who hold the property as separate property | Partition action | The bar covers only community interests |
| A third party who co-owns with a married couple | Partition action (joinder in the divorce is rare) | Third-party interests are subject to partition |
| Unmarried partners | Partition action | There is no community property |
| A co-owner ordered out by a restraining order | Restraining-order court for possession; partition action for ownership | A move-out order does not divide the equity |
Partition Is Still Available in Most Family Situations
The bar in section 872.210(b) is narrow. It applies only to spouses dividing their community interests between themselves. The California Law Revision Commission, which drafted the 1976 partition statutes, explained the limit in its comment to section 872.210:
It should be noted that subdivision (b) 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.
Law Revision Commission Comment to Code of Civil Procedure section 872.210
In practice, partition is available in these situations.
Former Spouses Who Still Co-Own After the Divorce
Many divorce judgments leave the house in both names, often as tenants in common, with a plan to sell or refinance later. When one former spouse refuses to follow through, the other is no longer dealing with community property. The former spouses are ordinary co-owners, and a partition action can force the sale or a buyout. The same is true when the judgment awarded each spouse a share as separate property. Your ex cannot block it: the right to partition is absolute, and a co-owner also cannot evict another co-owner or remove a co-owner from title outside of court.
Spouses Who Hold the Property as Separate Property
If married co-owners took title as separate property, or the property came to one or both of them as a gift or inheritance and stayed separate, their interests are not community property, and the partition bar does not apply. Whether property is community or separate can itself be disputed, and title alone does not always settle it. See our article on California Evidence Code section 662, which requires clear and convincing evidence to overcome the form of title.
A Third Co-Owner Who Owns Property With a Married Couple
If you own a share of property alongside a married couple, their community property rights are between the two of them. They do not stop you from forcing a sale through partition. The Law Revision Commission said so directly in its comment to the Family Code’s property-division provisions:
The interests of third parties may be subject to partition pursuant to Title 10.5 (commencing with Section 872.010) of Part 2 of the Code of Civil Procedure.
Law Revision Commission Comment to Family Code section 2650
If the couple files for divorce, the family court gains authority over their community interests, but that does not usually stop or delay your partition case. Under California Family Code section 2021, the family court may join a third party who claims an interest in the property, but joinder is discretionary and rare. As the Court of Appeal put it in Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 763, “In an extremely small number of cases joinder is the only reasonable alternative.” In most cases the partition action proceeds on its own, and it often moves faster than a sale ordered through the family court.
Partners Who Never Married
Unmarried couples have no community property. When they split and still co-own a house, partition is the remedy, and former romantic partners are among the most common co-owners in the partition cases we handle. Expect your ex to argue that your extra payments were gifts. See our articles on what happens when one partner paid the down payment and a co-owner not paying the mortgage.
Custody Cases Often Stall Until the House Is Resolved
The hardest version of this problem involves unmarried parents who co-own the home where their children live. The relationship is over, both parents are still in the house, and neither can afford to leave while still paying for it.
- Custody orders are hard to carry out while both parents live in the same house. A parenting schedule that says where the child lives on which days has little meaning when both parents are under one roof. In our experience, the custody case often cannot move forward in a practical way until one parent moves out.
- The partition action is often what ends the standoff. A partition forces a sale or buyout on a court timeline, which gives both parents a date by which the living arrangement will change. Based on Talkov Law’s completed-case data, the average partition action resolves in seven to nine months; see how long a partition action takes. Many clients file the partition and the paternity or custody case at the same time, so the house and the children are resolved on parallel tracks.
- Where the children live after a sale is a family court question. It is not a partition question. We coordinate with your family law attorney on timing so that a sale does not undercut the custody plan.
- A buyout may be the better outcome. If one parent wants to keep the home for the children, a partition action creates the setting for a negotiated or court-supervised buyout. See our guide to co-owner buyouts in California.
A Restraining Order Decides Who Lives in the House, Not Who Owns It
A Move-Out Order Does Not Change Ownership
A domestic violence restraining order can give one party exclusive possession of the home and require the other to move out, even if the person ordered out is on title. That order controls who lives in the house for a period of time. It does not change who owns it, and it does not divide the equity.
The co-owner who was ordered out still has the right to partition. A partition action converts that ownership interest into money through a sale or buyout, and the offsets and accounting address who paid the mortgage, taxes and insurance while the other party had the house. Our article on whether a restraining order can remove a co-owner from the house explains what these orders do and do not decide.
Where There Is a Real Safety Issue, Say So Early
When one co-owner has a legitimate, documented basis for a protective order, that fact can matter in how quickly the partition is resolved and in how the court and partition referee handle access to the property. A restraining order should never be sought as a shortcut to winning the house. We do not raise abuse allegations as a tactic, and we do not advise clients to. When they are real, they belong in both cases from the start.
Divorce Filed? The Automatic Restraining Orders Limit What You Can Do With Title
When a divorce petition is served, automatic temporary restraining orders (ATROs) under California Family Code section 2040 take effect and limit what either spouse can do with property while the case is pending. Those orders affect whether a spouse can sever a joint tenancy, refinance, or transfer an interest. Our article on severing a joint tenancy after the ATRO covers what is and is not allowed, and how it affects a later partition.
Inherited Property Is Usually Separate, So Your Spouse Can Partition It
Say your spouse inherited a house with a sibling, and the sibling will not sell or buy out. Inherited property is generally separate property, and the dispute is between your spouse and the sibling, not between the two of you. A partition action by your spouse is usually the path forward. See our post on what to do when a spouse won’t sell an inherited house.
Your Family Law Attorney Handles the Marriage; We Handle the House
Partition actions are a separate civil case, with their own statutes, procedure and timeline. Family law attorneys rarely handle them, and we do not handle family law. Your family law attorney handles the marriage, the children and support; we handle the sale, the buyout, and the accounting of who paid what. Talkov Law is America’s first partition law firm and California’s #1 partition law firm.
Most cases end without a trial: about 98% of our partition actions settle, usually with a buyout or an agreed sale. Based on Talkov Law’s completed-case data, the average partition action costs about $20,000, and the court can apportion the costs of partition, including attorney’s fees incurred for the common benefit, among the co-owners under CCP 874.040. See what a partition action costs. No fees until you win.
Co-Own With an Ex or a Married Couple? End It With a Partition Action
The family court decides the marriage and the children. Unless the house is community property between spouses, a partition action decides the house, and your co-owner cannot stop it. We represent co-owners in Los Angeles, Orange County, San Francisco, Riverside, San Diego, San Jose, Sacramento, and Surrounding Areas in California.
Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team handles every step of the process, from sorting out what belongs in the family court through the sale or buyout and the final accounting of who paid what. Call (877) PARTITION (727-8484) today or contact us online for a free consultation with a partition attorney.
