Parties who bring a petition for partition in Massachusetts have the choice under G.L. c. 241 of filing the action in either the Land Court or in the Probate and Family Court. As to the Probate court, venue is proper in the Probate Court of any county where any part of the land in the petition lies. Venue is proper in the Land Court, which sits in Boston, for any land within the Commonwealth. Where should you bring your case? There are a number of practical factors to consider.
The justices of the Land Court, on the one hand, and the justices of the Probate and Family Court, on the other hand, hear a range of very different kinds of cases. A party should take a hard look at the real issues presented in its petition for partition (e.g., are there special complications regarding the divisibility of the land at issue or complex questions about the construction of trust instruments) and determine whether one court may be likely to have greater experience dealing with such issues.
Parties are often concerned with the length of time it may take to resolve the petition for partition. The Courts of the Commonwealth are overburdened and it is simply a fact that any case in any court may end up taking a longer time than desired before a judgment is rendered. However, the dockets in some courts do move faster than the dockets in others. A party should be able to assess in advance whether there is an appreciable difference among the possible venues in the case processing time.
When selecting counsel, it is advisable for a party to inquire whether a particular lawyer under consideration prefers the Land Court or the Probate and Family Court as the venue for bringing petitions for partition. Often counsel does have a preference, which may be based upon that lawyer’s comfort zone or on specific experiences in different courts. By asking the question of whether the lawyer has a standing preference, you will at least open the discussion of what venue is appropriate for your particular case.
Do not overlook the possibility that your case might be resolved most expeditiously by mediation or another form of alternative dispute resolution. The courts generally encourage ADR and they have adopted programs that offer litigants specific options for the immediate pursuit of alternatives to the fully litigated case. The programs and practices of the Courts with respect to ADR do vary. An investigation of these may be the smartest step you take in deciding where you are going to bring your petition for partition.