Tenants in common question


#1

Hi Erin,

My absolute divorce should be final in August. We do not have signed SA and there are no pending ED claims. I am choosing not to file an ED claim prior to divorce because it actually works in my favor not to (i.e., 401k, etc.); my stbx does not have an atty and does not realize his right to ED will expire upon absolute divorce.

The only issue with me not filing for ED is joint-ownership of the marital home, which I reside in with the mortgage solely in my name. I understand that upon absolute divorce we will be considered “tenants in common”. I want to sell this home within the next 3-6 months, whereas he wants me to wait several years until the market completely rebounds when we can sell for a higher price.

My question is this: after the absolute divorce, what means do I have to force him to allow me to sell under the laws for NC tenants in common? I am hopeful there is some remedy available through the courts if he refuses to allow me to list the property and/or accept an offer.


#2

You may petition the court for a partition of the property and the court will decide whether or not the home will be sold.


#3

Thanks. What are the factors the court reviews in determining if the home is to be sold in that situation? Also, is petitioning the court a costly endeavor if I ended up needing to go that route?


#4

I do not practice in that area of the law, however I do know that the process to partition is more complicated than dividing the value of the home as part of equitable distribution.


#5

Is there some sort of claim I can file prior to the absolute divorce that allows the court to rule on how we should handle just the marital property and not on 401k, taxes, and other assets?


#6

No, the claim you need to file to deal with the home is a claim for equitable distribution, and it will encompass all marital assets.