Posted by Nydia Streets of Streets Law in Florida Divorce

What is a partition in a Florida divorce? This is a request to divide interest in property jointly owned by the divorcing couple. Can a partition or forced sale be ordered prior to a final judgment of divorce being entered? This was an issue in the case Blew v. Blew, 4D22-2127 (Fla. 4th DCA March 29, 2023).

In this pending divorce case, the wife filed her petition seeking partition of the marital property. The husband responded with a counter-petition also seeking partition. While the divorce case was pending, the husband filed a motion for summary judgment on the partition issue, arguing both parties were seeking the same relief. The wife opposed the motion, arguing no right to partition exists under Florida law prior to dissolution of marriage, and that there were disputed facts regarding her interest in the home and her use of the home for support. The trial court granted the motion over the wife’s objection and she appealed.

The appellate court reversed, holding “Florida caselaw has long held that property held by spouses as tenants by the entireties is not subject to partition. See Hunt v. Covington, 200 So. 76, 77 (Fla. 1941). That is because a tenancy by the entireties is ‘an estate over which the husband and wife have absolute disposition and as to which each, in the fiction of law, holds the entire estate as one person.’ [. . .] Thus, as a matter of law, partition is designed to provide a remedy where two or more persons have separate, and sometimes unequal, joint ownership interests in real property, but no logical reason for the remedy exists in the context of a single unit of ownership. In the instant case, both parties petitioned to partition the marital home which they owned as tenants by the entireties. However, because Chapter 64 governs partitions, and because sections 64.031 and 64.051 do not allow for partition of property held as tenants by the entireties, the trial court erred in ordering partition of the marital residence prior to the final judgment of dissolution.”

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