LOURIESE MURBACH, APPELLANT,
v.
RICHARD MURBACH, APPELLEE
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In a dissolution of marriage case, the appellate court struck portions of the trial court's judgment that ordered partition of the marital home, holding that a court cannot order partition of property incident to dissolution where neither party filed the requisite pleadings for partition. The court preserved the portions of the judgment addressing use and occupancy of the home and division of sale proceeds.
A court cannot order partition of property incident to dissolution of marriage where neither party filed the requisite pleadings for partition. Accordingly, the trial court's order requiring the home to be placed for sale and establishing a six-month deadline for sale was struck. However, the provisions addressing use and occupancy of the home and division of proceeds if voluntarily sold were preserved, and either party may sue for partition at any time since they own the home as tenants in common.
[1] A court cannot order partition of property incident to a dissolution of marriage where neither party filed the requisite pleadings for partition.
[2] Following dissolution, parties may own a former marital home as tenants in common, allowing either party to sue for partition at any time.
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Join FLexlaw to unlock all legal intelligence“A court cannot order partition of property incident to a dissolution of marriage where, as here, neither party filed the requisite pleadings for partition.”
Establishes the core legal principle that partition orders require proper pleadings and cannot be imposed unilaterally by the trial court in a dissolution case
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Join FLexlaw to unlock all legal intelligenceThe trial court issued a judgment of dissolution that included an order for the marital home to be placed for sale within six months, with the wife an…
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[*254] PER CURIAM.
Appellant attacks that portion of the judgment of dissolution which reads as follows:
2. The marital home is to be placed for sale forthwith with a licensed real estate broker.. If the home is not sold within a reasonable time, which this Court defines to be 6 months from the date of entry of this Judgment, or if either party hinders a good faith attempt to liquidate the home then this Court retains jurisdiction for partition purposes. Pending the sale of the home, the wife and children shall have exclusive use and occupancy of same and the husband shall be responsible for mortgage payments, real estate taxes and structural repairs. Upon closing of title, the husband is entitled to a credit of ½ of all such payments made by him and the net proceeds of sale after such reimbursement to the husband and after payment of the first mortgage will be divided equally between the parties.
A court cannot order partition of property incident to a dissolution of marriage where, as here, neither party filed the requisite pleadings for partition. Wiley v. Wiley, 485 So. 2d 2 (Fla. 5th DCA 1986); Fries v. Fries, 445 So. 2d 1070 (Fla. 4th DCA 1984); Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2d DCA 1977); Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972). We, therefore, strike the first two sentences of the foregoing paragraph. Since the parties now own the home as tenants in common, either of them can sue for partition at any time. We leave the last two sentences intact because they pertain to the use of the home if it is not sold and to the division of proceeds if it is sold.
We find no error with respect to the other issues argued on appeal.
Except as indicated above, we affirm the judgment.
GRIMES, A.C.J., and RYDER and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Kirkland v. Kirkland, 492 So. 2d 794 (Fla. 2d DCA 1986)…tion ordering the jointly owned marital home to be sold. The court was not authorized to order partition of property incident to a dissolution of marriage where, as here, neither party filed the requisite pleadings for partition. Murbach v. Murbach, 490 So. 2d 253 (Fla. 2d DCA 1986); Wiley v. Wiley, 485 So. 2d 2 (Fla. 5th DCA 1986); Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2d DCA 1977). We affirm the judgment in all other respects. DANAHY, C.J., and GRIMES and SCHEB, JJ., concur.…
Authorities Cited
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)
- Wiley v. Sharlene Marie Wiley, 485 So. 2d 2 (Fla. 5th DCA 1986)
- Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2d DCA 1977)
- Fries v. Fries, 445 So. 2d 1070 (Fla. 4th DCA 1984)