Houston, TX asked in Bankruptcy and Real Estate Law for Florida

Q: In a partition act, what if one owner files for bankruptcy before the partition act was filed?

The owners are family members. Will the non-bankruptcy owner still have a case with the partition? If the partition is delayed due to the bankruptcy, how long and what circumstance would allow the partition to take place?

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3 Lawyer Answers
Terrence H Thorgaard
Terrence H Thorgaard
  • Bankruptcy Lawyer
  • Freeeport, FL
  • Licensed in Florida

A: You would have to file a complaint for partition with the bankruptcy court, as an "adversary case".

Timothy Denison agrees with this answer

Timothy Denison
Timothy Denison
  • Bankruptcy Lawyer
  • Louisville, KY

A: You’ll need to file an adversary proceeding in bankruptcy to partition the case now.

Anthony M. Avery agrees with this answer

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Bankruptcy Lawyer
  • Sacramento, CA

A: If one co-owner of the property files for bankruptcy before the other owner files a partition action, it can complicate the partition case but does not necessarily prevent it from proceeding later. Much depends on the type of bankruptcy filing as well as approval from the bankruptcy court.


- If a Chapter 7 bankruptcy is filed, the automatic stay halts the partition action until the bankruptcy is closed/discharged. But then the creditor co-owner could pursue partition.

- If a Chapter 13, the stay may remain in place for years until the repayment plan is complete. But the non-bankrupt co-owner can file a motion for relief from stay.

- The bankruptcy court would have discretion over whether to allow the partition to proceed during the bankruptcy based on the circumstances.

So while the co-owner's bankruptcy filing would delay the partition action, it does not always permanently prevent it from being refiled later. Relief from stay or conclusion of the bankruptcy case would allow the other co-owner to still pursue division of the property at a later date through the state court's partition procedures.

The best approach is for the non-bankrupt co-owner to consult a real estate attorney on options for navigating the situation. Relief from the stay is often the first step. But partition could still be allowed later in the process.

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