COMPELLING THE SALE OF JOINTLY OWNED HOUSES

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COMPELLING THE SALE OF JOINTLY OWNED HOUSES

THE PARTITION SUIT

By Kenneth A. Vercammen, Esq

As times change, often people buying houses are not the traditional husband and wife couple. Mortgage companies are now usually willing to grant mortgage to boyfriend-girlfriend relationships or gay couples. However, if there is a breakup of relationships, a divorce complaint cannot be filed to compel the sale or division of assets. Instead, a partition suit can be filed in the Superior Court-Chancery Division - General Equity.

The partition suit originated from the English common law. Centuries ago, most property simply were farms. If co-owners could not voluntarily agree on a buy-out, or sole ownership, the Chancellor (an English Judge) could simply order the property/farms divided, or partitioned down the middle. In modern days, houses, condos and most land cannot be divided down the middle. Therefore, in a partition suit, the Superior Court Judge is usually asked to order the house sold and net proceeds divided.

A partition suit is usually started by having your attorney file a verified complaint for partition, signed by both you and the attorney. In addition, an Order to Show Cause is filed. This is a proposed order to be signed by the judge, compelling the defendant / the property owner to appear with their attorney and answer why the court should not award the relief requested with the original complaint. The defendant is also provided with time to file an answer plus counter-claim.

When there are issues other than an equal division of real property, the property owner, through their attorney, may conduct discovery. The three main methods of discovery under the New Jersey court rules are:

1) Interrogatories

2) Request for documents and

3) Deposition-which is live questioning under oath in front of a court reporter.

In partition suits, financial records may have to be produced to the court indicating who paid for household improvements, mortgage payments, taxe

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