I'll see if I can find something when I get a chance later this afternoon. Here's a question for you: Considering it's clear that equitable remedies are available in all civil cases, I'm curious why you think a judge couldn't do what I suggest. What are your thoughts?
Well, to be honest I think that you are taking that "equitable remedies" a slight bit out of the context of this particular set of circumstances. Naturally in any civil case, "equity" is going to be a major factor.
In a partition suit, the foremost "equity" that is going to be factored in, is someone's ownership percentage. A divorce, in an equitable distribution state, is a unique situation that views the marriage as a single ownership unit, and then divides the assets of the marriage, based on "equity". Even then however, if a real asset is 100% owned by one of the parties, a judge cannot take that asset away from that party, the judge can only re-divide other assets to account for it, or order an equity payout.
However, this is not a divorce situation because the divorce happened 20 years ago. This is two unrelated parties who have joint ownership of a real asset.
Lets use another example that has nothing to do with divorce.
Four siblings inherit a four flat apartment building from their parents. One of the siblings has always lived there, paying fair rent to her parents, and over the years, that sibling's children have taken over the other apartments and were paying rent to their grandparents. Naturally all were paying rent just a tad below fair market value, because that is what grandparents do.
Under an
unspoken agreement (because the other 3 siblings don't want to do their sister and her children out of the home they have always known) the sibling pays the mortgage and continues to collect rent from her children, and she and her children also take on the responsibility of maintaining the property. The other three siblings don't ask for their share of the rent, but they don't contribute to the expenses either.
There is no question that each of the 4 siblings has a 25% interest in the property. There is no question that the other 3 siblings would be entitled to 3/4's of the fair market rent for the apartments (and would be responsible for corresponding expenses). There is also no doubt that if the expenses exceeded the rent, that each of those 3 other siblings would gain a tax benefit, that they are not currently receiving.
Now, should there be a falling out between the siblings, and/or one or more of them filed a partition suit because they finally want or
need to "realize" their inheritance. Could a judge give a greater percentage of ownership/equity to the sibling who lived on the property and collected the rents, and paid all the expenses?..because that sibling took responsibility for the mortgage? Could the judge overlook the potential profits or losses (generating a tax benefit) that the other siblings would have been entitled to receive?
If we are going to be talking about pure "equity", there are so many factors that have to be taken into consideration that its quite a complicated process.
The "math" is no different because its one party that occupied or had use of the property in question. Its no less complicated.
If the parties had not been divorced for 20 years the situation would/could be more simple.
However, the bottom line is that someone who owns 50% of a property, owns 50% of a property.
The odds of a judge going beyond ownership interest as far as equity is concerned is slim, absent at least a provable oral contract. The odds of a judge being able to go beyond an ownership interest, without being vulnerable to appeal is also slim.
Ownership is ownership, beyond that the factors are complicated.