Can I Partition Property That I Owned With My Spouse After We Separated but Before the Divorce?

Short Answer

In North Carolina, you generally cannot force a court-ordered partition of real estate titled as tenants by the entirety until the marriage is dissolved by an absolute divorce. A legal separation alone does not break the special protection that North Carolina law gives to entireties property. If the deed shows some other form of co-ownership—such as joint tenancy or tenancy in common—a partition action is technically available, but the family court may pause (stay) that lawsuit if either spouse has filed for equitable distribution of marital assets.

Why the Ownership Form Matters

• Tenancy by the Entirety (TBE). When married spouses buy real estate together, the deed usually states “husband and wife” or similar language that creates a TBE. Under N.C. Gen. Stat. § 39-13.6, neither spouse may unilaterally sever or partition TBE property. The estate ends only by death, divorce, or a written deed signed by both spouses.
• Joint Tenancy / Tenancy in Common. If the deed names you simply as “John Smith and Jane Smith” (without the marital designation) or you acquired the property before marriage, you likely hold the property as tenants in common. Either co-owner can petition the clerk of superior court for partition under Chapter 46A.

Effect of Separation vs. Divorce

North Carolina recognizes a “separation” (living apart with the intent that the separation be permanent), but separation alone does not transform a TBE into a tenancy in common. The protective TBE form remains intact until one of these events occurs:

1. Both spouses sign a deed converting the ownership to tenants in common or conveying the property to one spouse.
2. The court enters a judgment of absolute divorce, which automatically converts the TBE into a tenancy in common. At that point, partition is available unless stayed by an equitable-distribution order.

Interaction With Equitable Distribution (ED)

If either spouse files an ED claim before the divorce is final, the family court obtains exclusive jurisdiction over how the marital home is divided. Under N.C. Gen. Stat. § 50-20(k), the trial court may stay (pause) any partition action until ED is resolved. Once the ED order is entered, the court can:

• Award the home to one spouse and require a refinance or buyout;
• Order the property sold and divide the net proceeds; or
• Allow a partition sale to proceed in the special proceeding division.

Practical Paths to Partition Before Divorce

Although you cannot force a unilateral partition of TBE property during separation, you have options:

• Mutual Agreement. Draft a separation agreement or free-trader agreement in which both spouses waive TBE rights and agree to sell or deed the property. Once recorded, the deed converts ownership to tenants in common, allowing partition if the sale falls through.
• Divorce First, ED Later. File for an uncontested absolute divorce (after the one-year separation period). Remember to preserve your ED claim in the divorce complaint, or you may lose the right to equitable distribution.
• Consent Partition Sale. Even while separated, both spouses can file a joint petition for partition by sale, expediting court approval.

Step-by-Step: How a Partition Action Works After Divorce

1. File a special proceeding with the clerk of superior court in the county where the land lies (see § 46A-3).
2. Serve the petition on your former spouse and any other co-owners.
3. The clerk decides whether a “division in kind” (physical split) is feasible. If not, the clerk orders a public or private partition sale under § 46A-28.
4. After sale, the clerk approves the commissioner’s report and divides the net proceeds according to each owner’s percentage interest.

Helpful Hints

• Check the deed. The wording controls the ownership form.
• If the deed is missing, obtain a certified copy from the Register of Deeds.
• File your ED claim before the divorce judgment, or you risk losing marital-property rights.
• A written separation agreement can spell out who pays the mortgage, taxes, and insurance while the home is unsold.
• A buyout often saves both spouses money compared to a forced sale.
• Consult counsel early—partition and ED deadlines move quickly once divorce is filed.

Ready to Move Forward?

Partition law and equitable distribution rules can collide, especially when you are separated but not yet divorced. Our North Carolina attorneys have the experience to protect your property rights and guide you to the most cost-effective solution. Call us today at (919) 341-7055 for a confidential consultation.