In the United States, sometimes, one couple present themselves as the couple on social occasions but never legally marry. In other words, they do not have a marriage certificate.  When their relationship falls apart, they are not protected by the DRL 236 B equitable distribution clause. For instance, Mr. W, one of my client, had a sham divorce with his wife because his wife planned to marry a US citizen to get the green card. She did not remarry Mr. W, after she got her green card. They raised a son together and bought a house. So, when they ended their relationship, they could not use DRL 236 B to distribute their “common” assets. The only way is to start a partition proceeding to protect of the rights of Mr. W. 

What is a Partition Action?

A partition action is type of case available to property owners who own property jointly. If the joint owners of real property disagree on how to dispose of the jointly owned property, a partition action is available to any titled owner.

What Relief Can be Granted in a Partition Action?

The principle behind a partition action is that one person cannot be compelled to own property jointly with another if they do not wish to do so. A partition action is an equitable remedy, meaning the court's authority goes beyond a money judgment. In a partition action, the court can direct specific performance.

One possible outcome is the property will be partitioned into smaller lots, giving each joint owner his or her own lot.

If that is not possible, the court will order the property to be sold.

 If the Court Orders the Property to be Sold in a Partition Action, How Are the Proceeds Divided?

In general, the proceeds are divided in the same proportion as ownership interest. However, offsets may be available to determine if the expenses and upkeep of the property were not shared.  If the property was rented, that income may also act as an offset. 

When is a Partition Action Necessary?

If a couple buys property and do not marry, no relief under equitable distribution is available since DRL 236 B only applies in the context of a matrimonial action. If a couple buys property after they marry, they can use a matrimonial action to resolve the distribution. 

If a married couple buys a home jointly along with a third party, and a divorce is filed, only a portion of the home which is determined to be marital property is subject to equitable distribution. Any portion of the home that is determined to be held by the non-spouse is outside the court's authority to dispose of, and a separate partition action is necessary. For instance, the owners of the house are an old couple and their daughter. Though the house was paid by the couple, the divorce can only resolve the distribution of the portion owned by the couple. If the daughter does not want to sell the house, they need to start the partition. 

Besides the partition, our law firm also make trust for the couple who never marry. Once they end their relationship, the trust can protect their respective legal rights. 

Some content is cited from Douglas Barics blog.