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Real Estate Partitions and Domestic Violence in Florida

Real Estate Partitions and Domestic Violence in Florida

In this article, we’ll break down: 

The physical and emotional dangers that victims of domestic violence face are immeasurable. But, sadly, the risks for victims don’t end there. Financial hardships can threaten their security, as well.

Of course, removing yourself from an abusive home and filing for a protection order is first and foremost. Once the proper protections are in place, it may be time to divide your and your abuser’s joint assets. Since your home is most likely one of your largest assets, it’s a smart place to start.

Unfortunately, dividing assets with your abusive partner may be easier said than done. Your abuser may not want to sell the home. Or your partner may not want to buy you out and pay you your portion of the home’s value (at least not a fair payout).

If your abusive partner refuses to work with you to divide your joint assets, including your home, filing a partition action may be the answer.

How Does A Partition Lawsuit Help A Victim of Abuse?

If you’re the victim of abuse and are a co-owner of real estate, filing a partition to force the sale of your interest can be critical in helping you escape the abuse. That’s because a co-owner is entitled to the value of their interest in the property. The value of their interest in the property is based on the fair market value of the property, subject to adjustments based on the length of ownership, among other factors.

How Does a Partition Lawsuit Work in Cases of Domestic Violence?

A Florida partition lawsuit is where one co-owner (partner or spouse) files a lawsuit in the county where the property is located to force the sale of the property and divide the proceeds of the sale among the owners of the real estate. Basically, a co-owner files a partition lawsuit to force the sale of the home when the other co-owner refuses to sell.

There are several reasons why selling the home and dividing the proceeds may make sense after separating from your partner. Particularly in domestic violence cases, selling shared real estate accomplishes two very important steps in the dissolution of your abusive relationship: it separates your assets from those of your abuser, and it ensures that you receive your share of your assets.

Because cases of domestic violence are often fueled by the control of one partner over the other, a partition can be a powerful tool for victims who need to take back control of their assets after a divorce or separation, so they have the financial resources they need to live independently and free from their abuser.

Read: What Are the Defenses to a Florida Partition Lawsuit?

How can a Partition Action Protect a Victim’s Assets in Cases Involving Financial Abuse?

Real estate partitions are also a useful tool for victims in cases where domestic abuse includes financial abuse. If your abuser keeps you from earning income, restricts your financial decisions, takes your paycheck from you, or otherwise abuses your financial independence, your financial contribution to your home will appear to be less than it would otherwise. As you can imagine, this has severely negative consequences when it comes time to divide your joint assets.

Why? Because in Florida, marital assets are divided equitably, but not necessarily equally. For instance, if one spouse contributed more to the home than another, that spouse may be able to claim more of the marital home’s assets.

In cases of domestic violence where financial abuse has also occurred, there’s the risk that the victim may, on paper, appear to not have contributed equally to the value of the home. So, when it comes time to divide the assets, those assets may be dispersed in a way that devalues the victim causing them financial harm. This usually occurs when the relationship is only a few years old.

With a partition, you can file a lawsuit pointing to the financial abuse you suffered and be better able to make the case for a more equitable division of your home’s assets.

What Happens if You and Your Partner are Only Life Tenants of the Property?

If you’re a co-tenant of a life estate, you co-own the property during your lifetime. However, your financial interest in the home ends when you pass away. A life tenant’s interest in the property ends at their death. At that time, the property passes automatically (by operation of law) to the remaindermen – usually a child or other beneficiary.

However, a life estate co-owner does have the right to partition the other life tenant during their lifetime. This is not the same scenario where an owner of the life estate desires to partition a remaindermen, or vice versa, which is not permitted under Florida law. For example, in Garcia-Tunon v. Garcia-Tunon 472 So.2d 1378 (1985), the court held that a partition action is not available to an owner of a life estate seeking to partition against the remaindermen.

How Do You File a Partition in Florida?

Removing yourself from a violent home is step one. Once you’re safe and you’ve filed your restraining order, you can move ahead and file the partition lawsuit. If you and your abuser are legally married, you can petition for a dissolution of marriage at the same time you file a partition action.

Partition lawsuits are filed in the county where the marital home resides. In Broward County, you’ll file at the Broward County Clerk of Court’s office.

The partition complaint must include the following: description of the real estate, names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands according to the best knowledge and beliefs of the plaintiff, and the portion of the real estate assets held by each owner.

To learn more about filing these lawsuits, please read our partition lawsuit article.

Does Homestead Protection Create a Hurdle for Married Owners?

Victims of domestic violence who are married to their abuser may be concerned about Florida’s Homestead Property Protection. The protection states that if a married couple wants to sell their property, then it can only be sold if they both sign a deed.

One way around this protection is through the dissolution of your marriage. If you and your spouse are divorced, you go from being married owners to co-tenants (or tenants in common). Filing a partition as a co-tenant avoids the homestead protection issue.

A Florida Real Estate Lawyer Will Help You Force the Sale of Your Home

Florida real estate lawyer Larry Tolchinsky has over 30 years of experience helping people with their real estate issues, including partition lawsuits. Larry helps property owners with real estate located in Broward County, Miami-Dade County, Palm Beach County, and throughout Florida both in filing and defending Florida partition lawsuits, with a substantial portion of his real estate practice involving partition cases. Please contact Larry today for a free initial consultation.

Related: Selling The House After a Divorce: Is Partition The Answer?