What happens if my former spouse cannot finance buying out my equity in the property?: Clear next steps under North Carolina partition law – South Carolina

Short Answer

In South Carolina, if former spouses co-own real estate and one cannot refinance or otherwise fund a buyout, the usual legal “next step” is a partition action in the Court of Common Pleas. The court can order a fair division of the property (partition in kind) if that can be done without unfair harm, or order a sale and divide the net proceeds based on each owner’s rights. A buyout can still happen inside the case, but it generally requires paying the court-ordered amount by the deadline the court sets.

Understanding the Problem

In South Carolina, what happens when former spouses remain on the deed together, one former spouse wants to keep the home, but cannot qualify to refinance or otherwise raise funds to buy out the other owner’s equity? Can the property still be forced to a resolution, and if so, does the outcome become a court-ordered sale or some other division? This question focuses on the single decision point: whether the law provides a path to convert shared ownership into either a buyout or a sale when financing is not available.

Apply the Law

South Carolina partition law gives co-owners a way to end shared ownership when they cannot agree on a voluntary buyout or sale. The Court of Common Pleas has authority to order partition in kind (a physical division), partition by allotment (awarding the property to one owner with an accounting/payment to the other), or a sale with proceeds divided according to the parties’ rights. If a fair division cannot be made without injury to the parties’ interests, the court may order a sale and then divide the proceeds.

Key Requirements

Co-ownership: The parties must hold title together (commonly as tenants in common after divorce, but the key point is shared ownership on the deed).
Inability to fairly divide by agreement: If the owners cannot agree on a voluntary buyout or sale, the court can step in to decide the method of partition.
Feasibility and fairness of the remedy: The court looks at whether a physical split or an allotment can be done fairly; if not, the court can order a sale and divide the proceeds.

What the Statutes Say

S.C. Code Ann. § 15-61-50 (Jurisdiction to partition in kind or by sale) – Authorizes the Court of Common Pleas to order partition in kind, allotment with an accounting/payment, or sale and division of proceeds when fair partition cannot be made without injury.
S.C. Code Ann. § 15-61-350 (Court may determine whether partition is practicable; may order sale) – Allows the court to decide, based on testimony, whether a fair partition is practicable and to order a sale when it is not.
S.C. Code Ann. § 15-61-370 (Cotenant buyout option when partition by sale is requested) – Provides a structured process and deadlines for a co-owner to elect to buy out the interests of co-owners who requested a sale, including a court-set payment date that is not sooner than 60 days after notice.

Analysis

Apply the Rule to the Facts: The facts described fit a common partition scenario: two former spouses remain co-owners, one wants to keep the property, but cannot obtain financing to pay the other’s equity. Because the buyout depends on available funds, a failed refinance often means the parties either reach a different voluntary deal (such as listing the property) or one owner files a partition action so the court can decide whether the property can be fairly allotted to one owner with a payment, or whether it should be sold and the proceeds divided.

Process & Timing

Who files: A co-owner on the deed. Where: South Carolina Court of Common Pleas in the county where the property is located. What: A partition complaint asking for partition in kind, allotment, or partition by sale (depending on the requested relief). When: Often filed after negotiations fail or when a refinance/buyout deadline in a private agreement cannot be met.
Valuation and election to buy (when applicable): If the case proceeds in a posture where a partition by sale is requested, South Carolina law can require a value determination and then gives eligible co-owners a chance to elect a buyout within the case. A co-owner who wants to buy generally must notify the court of that intent no later than 10 days before the partition trial date, and the court then sets a payment deadline that is not sooner than 60 days after the required notice is sent.
If the buyout does not happen: If the required buyout payment is not made by the court’s deadline, the case typically proceeds toward the court’s chosen remedy (often a sale if a fair in-kind division or allotment is not workable), followed by distribution of net proceeds according to each party’s ownership rights and any allowed adjustments the court recognizes.

Exceptions & Pitfalls

Confusing “divorce orders” with “title ownership”: A divorce decree may address who should keep the home, but if both names remain on the deed, a partition action may still be the tool to force a clean exit if cooperation breaks down.
Assuming “can’t finance” ends the issue: Inability to refinance does not freeze the other owner’s rights; it often shifts the leverage toward a sale or a court-managed buyout process with firm deadlines.
Not planning for liens, mortgages, and sale costs: Equity is not the same as sale proceeds. Mortgages, closing costs, and other liens can reduce what is actually available to divide after a sale.
Missing notice and timing requirements: South Carolina’s buyout process in a partition-by-sale posture includes specific timing steps (including the 10-day pre-trial notice requirement and a court-set payment date). Missing them can change the outcome.

Conclusion

In South Carolina, if a former spouse cannot finance a buyout of the other owner’s equity, the dispute often moves toward a partition action in the Court of Common Pleas. The court can order a fair physical division or allotment when feasible, but it can also order a sale and divide the net proceeds when a fair division cannot be made without injury. The practical next step is to file a partition complaint in the county where the property sits and be ready to meet any court-set buyout notice and payment deadlines.

Talk to a Partition Action Attorney

If former spouses co-own a home and a refinance-based buyout is not possible, a partition case may be the clearest path to a final resolution. A partition action attorney can review the deed, ownership shares, and likely remedies, explain the court’s process and timing, and help pursue either an in-case buyout or an orderly sale and distribution.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.