Partition Suits – Family Code vs Property Code
In last week’s blog we discussed how to divide jointly-owned property after divorce while briefly mentioning the two judicial methods used in this process: a partition suit under the Family Code, and a partition suit under the Property Code.
Both suits follow different rules, so take a look at the comparison chart below, which is per the Texas Family Code.
As always, if you or anyone you know are going through a divorce, contact Nelson Law Group, PC. Every divorce case is different, and requires a keen legal eye to decipher what is just and right for each party involved. We are always accessible, and we truly love hearing from our clients.
| Partition Suits – Family Code vs Property Code | ||
| Family Code | Property Code | |
| Property subject to partition | Property not divided or awarded in final dissolution decree. | * Property not divided in final dissolution decree.
* Property awarded to each spouse as cotenants in final dissolution decree. |
| Where to file | * If marriage was dissolved in Texas, suit must be filed in same court that rendered final dissolution decree.
* If marriage was dissolved in foreign court, suit can be filed in any Texas court that has jurisdiction over the parties and the property. |
* For real property, suit must be filed in court of county where any part of property is located or in court that has concurrent jurisdiction and jurisdiction over the amount in controversy.
* For personal property, suit must be filed in court having jurisdiction over the value of the property. |
| Statute of limitations | * For real or personal property, two years from date of unequivocal repudiation of petitioner’s interest in property.
* The two-year limitations period is tolled while a Texas court does not have jurisdiction over the former spouses or the property. |
* For real property, if there has been no adverse possession, there is no limitations period.
* For personal property, four years from date of denial or repudiation of plaintiff’s interest in property. |
| Standard for partition | * If marriage was dissolved in Texas and the court had jurisdiction to divide property but did not, property must be partitioned in just and right manner.
* If marriage was dissolved in Texas and court did not have jurisdiction to divide property, property may be partitioned in just and right manner. * If marriage was dissolved in foreign court and court had jurisdiction to divide property but did not, property must be partitioned according to law of that foreign court. * If marriage was dissolved in foreign court and court did not have jurisdiction to divide property, property may be partitioned in just and right manner. |
* Generally, property must be divided equally, based on each party’s undivided one-half interest.
* Court must consider all questions of equity when partitioning property. |
| Attorney fees | Court may award reasonable attorney fees. | Court cannot award attorney fees. |
