One of the biggest assets in a Florida divorce may be the marital home. It can also be difficult to divide because a home cannot be physically divided between the spouses. During the divorce, the couple can agree which party will keep the home, which will buy the other party’s share, or they can sell the house and address the remaining equity through equitable distribution.
Florida law states that, in all cases, the distribution of a marriage’s assets and liabilities should be equal unless there is a legal reason for a different division. The statute also allows the court to consider retaining the marital home for a dependent child or another party when doing so would be equitable, in the child’s or that party’s best interests, and financially feasible.
Who Gets the House during Divorce in Florida?
The house doesn’t automatically go to the wife or husband. The court considers the home’s value, its debts, the parties’ financial positions, and other factors pertinent to equitable distribution.
The court shall consider the desirability of retaining the marital home for a dependent child when doing so is in the child’s best interests and the court is financially able to do so under Florida Statutes § 61.075. In some cases, one spouse may receive the home while the other spouse receives other marital assets of comparable value. In other cases, the home may need to be sold. Therefore, the legal title to the home does not, by itself, determine how it will be handled in the divorce.
What is the process for buying out a house during a divorce in Florida?
One spouse may retain the home while buying out the other spouse’s marital interest in the property.
The amount of the buyout may vary depending on the property rights, debts, and contributions of the parties, any other marital property or liabilities, and the terms of the buy out or court order. A court can also order a monetary payment (in a lump sum or in installments) to help achieve equitable distribution. Florida Statutes § 61.075(10) addresses these cash payments.
What If Both Names Are on the Mortgage?
A divorce will not remove either spouse from the mortgage if both spouses are borrowers. This is a key difference between property ownership and the liability of a mortgage.
A divorce judgment or property settlement may require one spouse to make the mortgage payments. That doesn’t necessarily mean, however, that the other spouse is not liable to the mortgage lender.
According to the Consumer Financial Protection Bureau, a divorce decree may assign responsibility for a debt to one former partner or the other, but typically doesn’t relieve the borrower of the debt owed to the creditor. In some instances, refinancing the loan, assumption, or other lender-approved transactions will be needed to remove one spouse’s obligation.
What If Only One Spouse is on the Mortgage?
One spouse’s name on the mortgage doesn’t necessarily indicate who owns the home or whether it is marital. Deed and other evidence of ownership should also be taken into account.
So, during a divorce, the mortgage and title should be looked at separately.
What if neither spouse can afford the home?
When neither spouse can afford the mortgage and other expenses of maintaining the house, the parties may need to consider selling the home.
The mortgage and other approved closing costs are usually due at the time of sale and can be paid from the sale proceeds. Then any remaining equity will be addressed during the equitable distribution of marital assets. When the home has little to no equity, or if the mortgage balance exceeds the home value, things may get a little trickier.
The spouses may need to determine how to handle the remaining mortgage debt, sale expenses, and lender requirements before deciding whether to sell the home.
Can My Spouse Sell the House?
A spouse isn’t automatically entitled to sell the marital home just because they wish to sell it. If both spouses agree, they may sell the property as part of the divorce proceedings.
Florida Statutes § 61.075 requires the court to distribute marital assets and liabilities in accordance with the equitable distribution rules outlined in the statute. The law also gives the court the discretion to consider, in some circumstances, whether it is appropriate to keep the marital home.
Can One Spouse Live in the Home During the Divorce Process?
One can remain in the marital home during the divorce proceedings. Sometimes the parties may agree that one spouse can stay in the house temporarily. Possession or use of the home may also be addressed by a court when necessary.
Florida Statutes § 61.075 explicitly acknowledges that the marital home may be retained for a dependent child or another party if it is “just and feasible. However, just because the husband or wife chooses to stay in the home during the divorce does not mean they will automatically end up with the home.
During the divorce, the parties should also be aware of the terms of the mortgage payment, housing-related taxes, insurance, repairs, etc.
What if the house was owned before marriage?
Not all homes are considered marital property if one spouse owned the home before the marriage. Generally, the spouse claiming that an asset is nonmarital must provide evidence to support that claim.
There are also certain rules in Florida law governing cases in which marital funds have been used to pay off a mortgage on nonmarital real estate to reduce the principal. Under Fla. law, some principal payments on a mortgage made with marital funds and some appreciation can be considered marital for purposes of equitable distribution, under Florida Statutes § 61.075(6)(a).
Should I Sell the House Before Filing for Divorce?
There are legal and financial implications to selling the marital home before filing for divorce. A spouse should not think that, just by selling the house, they are ending the divorce proceedings or any claims by the other spouse.
The law in Florida addresses marital assets and liabilities, as well as acts of dissipation, wastage, depletion, or destruction of marital assets.
In case your marital home is under some disposition, like selling, transferring, or refinancing, you need to understand how selling or disposing of this property can affect your divorce proceedings.
What About the Mortgage Payments and Credits If the House is Sold?
Florida law addresses credits and set-offs in the sale of marital homes. In accordance with Florida Statutes §61.077, no credits or set-offs are available at the moment of selling a home unless there are special provisions in a settlement agreement or final judgment.
If no such agreement was signed, the court may consider factors such as exclusive use of the property, alimony or child support payments to the spouse living in the home, the benefit of using the home, payment of the mortgage or taxes, and tax implications. It is one of the reasons why the property agreement needs to discuss who will pay expenses and how the proceeds will be handled.
What should I consider before deciding to sell or Buy Out the house during a divorce?
Before deciding what to do with the marital home in a Florida divorce, both spouses should consider more than the home’s current market value.
Important issues may include:
- The home’s current fair value
- The remaining mortgage balance
- Available equity
- Property taxes and insurance
- Maintenance and repair costs
- Whether one spouse can qualify for refinancing or another mortgage arrangement
- Each spouse’s other marital assets and liabilities
- The financial impact of selling
- Whether children will continue living in the home
- How the home’s value will be treated in the overall equitable distribution
How Can a Coleman Law Group Aid in the Division of Property in Florida?
A Florida divorce attorney handling a division of property case can determine whether the home is marital or nonmarital, review the homeownership and mortgage paperwork, assess the home’s status under equitable distribution, and assist in negotiating an agreement regarding the home. When the spouses are unable to agree, the court may decide how to distribute the property in accordance with Florida’s equitable distribution laws.
Coleman Law Group will be able to give you a general idea of how the Florida law may impact your marital residence and other property that is included in your divorce. Contact Coleman Law Group today at +1 727-214-0400 or aheartforpeople@clgfl.com to schedule a consultation.
