L AW
REAL PROPERTY
IN A DIVORCE
By K. Dean Kantaras and Jennifer H. Cavill
WHEN GOING THROUGH A
divorce, one issue of contention
can be what will happen to real
property owned by the parties. If the
parties are unable to agree about what to
do with their real property, including the
marital home, the Judge will decide when
they enter an equitable distribution
schedule. This schedule is where the
Court orders the allocation of the assets
and liabilities acquired by the parties
during the marriage. However, one or
both parties can request the Court to
order the sale of real property and request
that the sale proceeds be distributed
between the parties. This is referred to
as partition of property.
A request for partition must occur in
the venue in which the real property is
located. See §64.022, Florida Statute. This
means that if the marital home is located
in Pinellas County and one party wants
the marital home sold, the request for
partition must be made in Pinellas
County. Usually, this is not an issue since
typically the parties last resided together
in the marital home and an action for
dissolution of marriage must be brought
in the county where the parties last
resided together with the common intent
to remain married. See Smith v. Smith,
430 So. 2d 521, 522 (Fla. 2nd DCA 1983).
However, in a dissolution of marriage,
the Court will be without jurisdiction to
order the partition of real property when
the real property is located in another
county, such as a vacation home.
The party seeking a sale must include
in his or her petition for dissolution of
marriage certain information in order
for the Court to have jurisdiction to order
the sale of real property. According to
§64.041, Florida Statute, the complaint for
partition of real property must include
the following: “…a description of the
lands of which partition is demanded, the
names and places of residence of the
jurisdiction over the parties. In such
cases, the Court may order one party to
transfer an interest in real property located
in another venue to the other party as
part of equitable distribution. Therefore,
the rights and interests in real property
located outside of the county will still be
addressed by the Court in a dissolution
of marriage matter, just not through the
sale of the real property. Additionally,
a party may bring a separate action for
partition, unconnected with a dissolution
of marriage, in the county in which the
property is located. For more details on
partition of real property, see Chapter 64,
Florida Statutes.
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EDITOR’S NOTE: K. Dean Kantaras has
been licensed to practice law in Florida for over
nineteen years. Mr. Kantaras is the managing
partner of K. Dean Kantaras, P.A., a firm
handling cases in family law and immigration.
Mr. Kantaras is board certified in marital and
family law by the Florida Bar, a distinction
held by less than one percent of all attorneys
licensed to practice in Florida. He is “A” rated
by Martindale-Hubbell, the highest possible
rating. He is a member of the Supreme Court
of the United States, the United States Court
of Appeals for the 11th Circuit and Middle
District, The Florida Bar, and the Clearwater
Bar Association. His offices are located at 3531
Alternate 19, Palm Harbor, 34683, (727) 781-0000
and 1930 East Bay Drive, Largo, 33771,
(727) 544-0000. www.Kantaraslaw.com.
Jennifer Cavill, Esq. is an Associate Attorney
at the firm. She is a member of the Florida
Bar, the United States District Court-Middle
District of Florida, Clearwater Bar and
St. Petersburg Bar Associations and Canakaris
Inn of Court.
K. Dean Kantaras, Esq.
owners, joint tenants, tenants in common,
coparceners, or other persons interested in
the lands according to the best knowledge
and belief of plaintiff, the quantity held
by each, and such other matters, if any,
as are necessary to enable the court to
adjudicate the rights and interests of the
party. If the names, residence or quantity
of interest of any owner or claimant is
unknown to plaintiff, this shall be stated.
If the name is unknown, the action may
proceed as though such unknown persons
were named in the complaint.” Failure to
include this information in the complaint
for partition of real property may subject
the requesting party to a Motion to
Dismiss by the other party for failure to
state a cause of action.
Although the Court in one county will
not be able to order the partition of real
property located in another county, such
as the example of a vacation home above,
once the Court has jurisdiction over the
parties for a divorce, the Court maintains
124 TAMPA BAY MAGAZINE MARCH/APRIL 2015