Breaking up is never easy. Unfortunately, for couple who cohabitate, it can be as difficult as divorce when shared property is involved. In cases where two unmarried individuals co-own a home and decide to part ways, determining who gets to keep the house and how the equity is divided can be a complex process. A Petition to Partition is what’s typically put before the judge to determine who gets what when a couple cohabitates and owns a home together. When making their decision, there are many factors a judge weighs.
While these cases most often involve romantic partners, they can also involve relatives, business partners, or simply two friends who decide to buy a house together.
What is a Petition to Partition?
When two unmarried individuals co-own a property and wish to terminate their shared ownership, they can file a legal action known as a Petition to Partition. This allows the court to intervene and facilitate the fair division of the property, including the distribution of equity. The main objective of the Petition to Partition is to ensure an equitable outcome for both parties involved.
What do judges consider when determining a Petition to Partition?
Judges typically consider various factors when deciding how to divide the property and allocate equity. The Judge has a wide degree of discretion in deciding what factors to consider, and how heavily to weigh them. While laws may vary from jurisdiction to jurisdiction, the following factors are commonly taken into account:
- Financial Contributions: The court will assess the financial contributions made by each party towards the acquisition of the property. This includes the initial down payment, mortgage payments, and maintenance expenses. Generally, a larger financial investment may lead to a larger share of the equity.
- Non-Financial Contributions: Besides financial contributions, non-financial contributions such as property upkeep, renovations, and improvements are also considered. These efforts can enhance the value of the property and may influence the division of equity.
- Other Contributions: One partner may have contributed to the relationship in another way, such as being the primary caretaker for a child, or paying for other joint bills. A Judge may consider this in deciding to award that partner equity in the home as a form of compensation.
- History of Ownership: The property may have been owned by one partner originally, who owned equity prior to the other partner’s name being added to the deed. Or, perhaps the property or down payment was gifted by the family of one partner. These are factors a Judge might take into account.
- Ownership Agreements: If the co-owners entered into any written agreements or contracts regarding the property, the court will review these documents to determine the intentions and expectations of the parties. This may include cohabitation agreements or contracts outlining the distribution of equity in case of separation.
- Duration of Ownership: The length of time each individual has owned and resided in the property may also be taken into account. Generally, the longer an individual has resided in the property, the stronger their claim may be to a larger portion of the equity.
- Future Living Arrangements: The court may consider the housing needs and financial situations of both individuals post-separation. Factors such as child custody arrangements, employment stability, and the ability to secure alternative housing can influence the decision.
Consider a Cohabitation Agreement
If you decide to purchase a piece of real estate with a significant other, or anyone else, consider a cohabitation agreement. This is a contract similar to a prenuptial agreement, or a business partnership agreement, that will determine the rights and responsibilities of each owner, including who will get possession of the property, and how the equity will be divided if there is a breakup.
While it can be emotionally challenging to navigate the division of property equity after a separation, understanding the general factors considered by judges can help you prepare for the legal process. A Petition to Partition provides an avenue for the fair distribution of property, ensuring both parties receive an equitable share of the equity. Financial and non-financial contributions, ownership agreements, duration of ownership, and future living arrangements are all factors that judges typically take into consideration.
Before moving forward with a Petition to Partition, it’s important that you consult with an experienced attorney. Our team at Cohen and Winters has dealt with many family law cases for both married and cohabitating couples. Connect with our team to learn more about how we can help advise you and work for the most fair and favorable outcome possible.
