My boyfriend and I want to buy a house together. Can you help us draw something up in case something happens?

Here's the problem. Jack and Jill buy a house and spend a lot of time and money fixing it up. Their weekends are consumed with projects. They tile the floors. They take a class and then redo the bathrooms. It seems that the house is never done. Unfortunately, though, their relationship is done.

One of them moves out. If they had been married the divorce court would sort it all out. Some people have prenuptial agreements to guide them through the financial mess. However, in our scenario, Jack and Jill never got married.

There is a special type of lawsuit for this situation called a "petition to partition." When two or more people jointly hold interests in real estate, this is the court's process for sorting out who ends up with what. It often happens in this context, when unmarried couples buy a house and then break up. Think of it as a divorce without the marriage: there's still property to fight over.

There are some old cases where two people ended up with a large expanse of land. The court could just "partition" the land by cutting it in half. Easy.

It is not so easy where the dispute centers over a single-family home on a house lot. The court can grant one party full ownership, but not until the other party is paid for their "equity." Or the property can be sold, but the court then has to figure how to split the sale proceeds.

In determining these issues, the court may consider a number of factors including "the direct or indirect actions and contributions of the parties to the acquisition, maintenance, repair, preservation, improvement and appreciation of the property." (RSA 547-C:29) The court can also consider disparities in the contributions of the parties, any contractual agreements entered into between the parties, waste caused to the property by the parties, tax consequences and any other factors deemed relevant.

This is the New Hampshire law. But the same general principles are fairly universal.

Note that the court can consider "contractual agreements." So, think about swallowing pride and emotions before the real estate closing and inking an agreement providing a simple formula for dividing up the property interests if your relationship ends.

In the context of a marriage, more and more people enter into prenuptial agreements before they tie the knot. The courts generally enforce the agreements as long as they are considered "fair" and where they are entered with full disclosure.

I asked a judge who sits on these cases whether he would enforce an agreement drawn up by unmarried cohabitants regarding the disposition of property in the event of a breakup. Without hesitation he said yes. It would make the process much simpler and he would respect such a contract.

Partition actions can be long and drawn out. Both parties will usually take various depositions and pay for property appraisals. There will be inevitable lists or spreadsheets itemizing various contributions. Throw in numerous court appearances and you're talking big money.

In one partition I observed, the parties disputed nearly everything. They fought over receipts from the home supply store and the value of "sweat equity." An issue was even made over a special fancy shower head.

I was involved in a petition between father and son over a piece of property that went on seemingly forever. It didn't end until the New Hampshire Supreme Court ruled that the first trial was enough, no right to a second one. Despite what the Legislature said in the partition statute.

Married couples who hit the wall divorce. Flowers wilt. TV shows with bad ratings die. Folks who own real estate jointly petition to partition.



Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.



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