Couples sometimes buy a house together before they are married. The house is jointly owned (that is, owned by both parties) but it is not subject to Louisiana’s community property laws. For example, if a house is community property, a judge has the ability to assign its ownership to either the husband or the wife, depending on other circumstances. The judge can consider, among other things, whether one party is in a better position to pay the mortgage and whether there is other property equal in value to the house that the judge can give to the other spouse.
If a piece of jointly owned real estate is not community property, the judge has only two alternatives. The first alternative is to divide the jointly owned property in kind. An “in kind” partition divides the jointly owned property into two pieces of equal value. For example, if the property is a ten-acre tract of land, and if equal value can be provided to each co-owner by dividing it into two pieces of five acres each, that is what the judge must do.
However, if it is a city lot with a house on it, there is usually no way to split the house and lot into two pieces so each owner can have one-half. The judge in this case must order the property sold at public sale. A public sale often results in the parties receiving less than the true fair market value of the house and land.
Many co-owners of property agree to list their property for sale before attempting to partition it in a lawsuit. Before they do, however, they must have a meeting of their minds on things like the listing real estate agent, the duration of the listing, the listing price, and how much each will receive out of any net sale proceeds. If one owner put a large down payment on the house, that owner will probably require repayment out of the sale price. These and other factors can complicate a private sale of jointly owned property. The devil is in the details.
If the two of you bought real estate in another state before you were married, things are even more complicated. The law of that state will probably apply and will probably establish the rules you must follow to divide it, by agreement or by sale. Your lawyer will probably need to consult with an attorney in that state to make sure your rights are protected. That lawyer will charge for his or her advice. The costs of your divorce and your partition of property are likely to go up.
If you and your spouse bought a home before you married, and you are divorcing, bring this fact to your lawyer’s attention. Your lawyer can include a request to partition the jointly owned property in your petition for divorce. Your lawyer can also help you develop an agreement for the sale of the property.