It is not uncommon for our firm to hear from a former spouse after a divorce has been finalized and later discover that certain real property was never fully divided or addressed in the decree. In many cases, one or both parties are surprised to learn they remain on title to real estate long after the marriage has ended. This situation most often arises unintentionally, due to an oversight during the divorce process by the parties or their counsel rather than a deliberate decision. However, in some instances, the continued joint ownership is intentional, as former spouses may choose to retain shared interests in real property that they view as a long-term investment opportunity or otherwise beneficial to hold collectively following the divorce.
How Does This Happen?
When a divorce decree fails to specifically divide or partition a piece of real estate, Texas law treats that property as belonging to both former spouses as tenants in common — meaning each party holds an undivided ownership interest. This is the default outcome under Texas law when co-owned property is simply not addressed. (Harrell v. Harrell, 692 S.W.2d 876 (Tex. 1985).)
The Cooperative Solution (and Why It Rarely Works)
In an ideal world, both former spouses would simply agree on what to do with the property. One party could deed their interest to the other — usually in exchange for a buyout — and the matter would be resolved quickly and affordably. In practice, however, people who have been through a divorce are often the last people who want to cooperate with each other (shocker). When an amicable resolution isn’t possible, the law provides another route: a partition action.
What Is a Partition Action?
A partition action is a lawsuit that allows a co-owner of property to force its division or sale through the courts. In Texas, this right is established under Texas Property Code § 23.001 and governed procedurally by Texas Rules of Civil Procedure 756–771.
Importantly, the right to partition is essentially absolute — as long as you are a co-owner who is entitled to possession of the property, you can pursue it. (Spires v. Hoover, 466 S.W.2d 344 (Tex. Civ. App. 1971).)
There are two forms a partition can take:
Partition in Kind — The court physically divides the property into separate tracts, with each owner receiving their own piece. Texas courts prefer this approach when it’s feasible, since it allows both parties to retain real estate rather than simply receiving proceeds from a sale.
Partition by Sale — When dividing the property into separate tracts would result in each piece being worth significantly less than the whole (which is almost always the case with a standard residential lot), the court will order the property sold at a public auction. The proceeds are then distributed among the co-owners. Any of the owners may participate in the bidding at that auction.
What Else Can Be Addressed in a Partition Lawsuit?
Partition actions frequently involve more than just the division or sale of the property itself. Related claims that often arise include:
- Reimbursements — If one party has been paying taxes or funding improvements to the property, they may seek reimbursement from the other owner.
- Accounting for rents and profits — If one party has been collecting rental income from the property, the other owner may request an accounting and their share of those earnings.
Partition Actions Beyond Divorce
Post-divorce situations are among the most common reasons clients come to us about partition actions, but they are far from the only ones. Other frequent scenarios include:
- Inherited property — When multiple heirs inherit real estate together, disagreements often arise. One heir may want to sell and receive their share in cash while others prefer to hold onto the property.
- Dissolving a co-ownership arrangement — Business partners or co-investors who no longer agree on how to manage or use a shared property may need a partition action to move forward.
Don’t Navigate This Alone
Partition lawsuits are procedurally complex. From filing the initial action to managing ancillary claims to navigating the auction process, there are many steps where things can go wrong without proper guidance. If you find yourself as an unintended co-owner of real estate — whether after a divorce, an inheritance, or a failed partnership — an experienced real estate attorney can help you understand your options and protect your interests.
Contact our firm today to discuss your situation.