Short Answer

In North Carolina, if a co-owner cannot or will not complete a buyout, you can file a partition proceeding. The Clerk of Superior Court can order either a physical division (rare for a single home) or, more commonly, a court-supervised sale with proceeds split after costs, liens, and any credits are handled. Sales follow judicial sale rules with an upset-bid period, and either side can raise accounting issues before money is distributed.

Understanding the Problem

In North Carolina, can you force a sale if your former spouse who lives in the home cannot refinance to buy your share? You and your former spouse co-own the residence, and you want to remove your name from the deed and receive your remaining equity even if there is no agreed buyout.

Apply the Law

Under North Carolina law, co-owners (tenants in common after divorce) have a statutory right to partition. A partition is a special proceeding filed with the Clerk of Superior Court in the county where the property sits. The default remedy is partition in kind (physical division), but if dividing the property would harm its value or is impractical (as with most single-family homes), the court can order a partition by sale. Court-ordered sales follow the judicial sale process, including a 10-day upset-bid window. Before distributing net proceeds, the court can account for mortgage payments, taxes, insurance, necessary repairs, and value-adding improvements by one co-owner.

Key Requirements

• Co-ownership: You and your former spouse hold title together; that status gives you a right to seek partition.
• Forum: File a verified partition petition with the Clerk of Superior Court in the county where the property is located; service is under civil summons rules.
• Type of partition: If a fair in-kind division is not feasible, the court may order a sale; single homes are typically sold rather than split.
• Sale procedure: Judicial sale rules apply, including a 10-day upset-bid period that can extend if higher bids are filed.
• Distribution & credits: After costs and liens, proceeds are divided by ownership shares, with adjustments for carrying costs, necessary repairs, and value-adding improvements.

What the Statutes Say

• Chapter 46A (Partition of Property) – Governs partition in kind and by sale, appointment of commissioners, and procedure.
• G.S. 1-339.25 (Upset bids after public sale) – Sets the 10-day upset-bid process and requirements.
• G.S. 1-339.36 (Upset bids after private sale) – Provides similar upset-bid rules for private judicial sales.
• G.S. 1-301.2 (Special proceedings; transfer) – Requires transfer to Superior Court if a party raises disputed facts or equitable defenses.

Analysis

Apply the Rule to the Facts: You and your former spouse co-own the residence, so you can petition for partition. Because a single-family home cannot be fairly split, the Clerk is likely to consider a sale if no buyout occurs. Your former spouse’s occupancy does not block a sale, but they can seek credits for documented mortgage, tax, insurance, and necessary repair payments; likewise, you can contest or claim offsets. After sale, the court divides net proceeds by your ownership shares, after any allowed adjustments.

Process & Timing

1. Who files: Any co-owner. Where: Clerk of Superior Court in the North Carolina county where the property sits. What: Verified petition for partition (in kind or by sale), civil summons, and service on all interested parties. When: No fixed filing deadline; the upset-bid window is typically 10 days after each reported sale bid.
2. Hearing before the Clerk to determine partition in kind vs. sale; if disputed facts or equitable defenses (e.g., title dispute, competing court orders) arise, the Clerk must transfer to Superior Court. Counties vary on scheduling; mediation may be ordered.
3. If sale is ordered, a commissioner conducts a judicial sale. After the upset-bid period ends and the sale is confirmed, the commissioner prepares a deed to the high bidder. The court then handles accounting, liens, costs, and distribution of net proceeds to co-owners.

Exceptions & Pitfalls

• Existing family-court orders: A prior or pending equitable distribution or exclusive-possession order may control the property and affect partition timing or forum.
• Title disputes or equitable defenses: Allegations about ownership, liens, or constructive trusts force a transfer from the Clerk to Superior Court.
• Credits and offsets: The occupying spouse may claim credits for mortgage, taxes, insurance, necessary repairs, and value-adding improvements; undocumented or purely cosmetic expenses may be reduced or denied.
• Sale mechanics: Upset bids can extend timelines; ensure proper notice and compliance with judicial sale procedures.
• Heirs property rules: The Uniform Partition of Heirs Property Act has special steps for inherited property; it typically does not apply to former spouses co-owning after divorce.
• Remote appearances: Some counties allow virtual appearances in special proceedings at the Clerk’s discretion; request this early if you live out of state.

Talk to a Partition Action Attorney

If you’re dealing with a co-owned home after divorce and a buyout isn’t happening, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.