One of the biggest questions that will have to be answered in your divorce is who gets the marital home. Houses are major assets and are often the source of significant conflict between divorcing spouses. One possible outcome is that the judge will force the sale of the marital house in your divorce. Whether you want the house or you’re willing to give it up, Orlando Family Team is experienced with all aspects of Florida property division and is ready to help you.
How Will The House Be Divided?
In general, there are two ways that your Florida marital home will be divided (and possibly sold): either by the court or by agreement with your spouse.
To divide marital assets, Florida courts use a process known as equitable distribution. This means that property must be divided fairly between the parties. “Equitable” does not mean equal, so a 50/50 split is not necessarily what the court will order. To the contrary, the judge will consider a number of statutory factors to decide what is fair.
One of those factors is whether either spouse should be given possession of the marital home in order to allow a dependent child to continue residing there. Indeed, if you have children, the question of who gets the marital home becomes more complicated. If you or your spouse is granted primary custody of the child, there’s a strong argument for that party to be given the house so the child can keep living there. That makes it less likely the house will be ordered to be sold.
Even if you don’t have children, the court will have to evaluate the equitable distribution factors to see what outcome is most fair. But the parties get to have some say in this decision if they can agree to compromise and decide what happens to the house. Most cases that are settled result in one of two outcomes:
- The house is sold and the net proceeds (what’s left after paying off the outstanding mortgage balance, taxes, and other expenses) is distributed in some percentage between the spouses
- One spouse will continue living in the house until the child graduates high school or turns 18, then it will be sold and the proceeds split
What Happens If The Court Decides to Force the Sale of the Marital House in the Divorce?
To understand whether your house will need to be sold, you have to know the court’s role if the parties cannot decide what to do with it. That means understanding more about the above-outlined equitable distribution process.
First, the court must decide that the house is marital property. Equitable distribution is a process that only applies to marital assets and debts. If you owned the house before you were married, you may have an argument that the house is separate property, and therefore cannot be forcibly sold.
But it’s not as cut and dry as whose name is on the deed. Both parties may have contributed funds to the home, for instance, to pay the mortgage or make improvements, even though the house was legally in one party’s name. Or, perhaps, the house was used as collateral for joint marital debts. If you and your spouse shared in the responsibilities or financial obligations of the house, an argument can be made that both have some sort of interest in the property or its equity. At a minimum, that brings the house into the court’s jurisdiction.
Assuming the home is indeed marital, the court will need to then determine a value for it. This is important regardless of whether you or your spouse gets the house. Let’s say you agree to let your wife have the house. You will want it to have a relatively high value so your wife will be entitled to fewer additional assets. If the court decides the house isn’t worth that much, it will likely distribute other valuable assets to your wife so her overall take from the marriage is more equitable.
On the other hand, if you are the one who is given the house, you will probably want the value to be on the low side. That way, you can also receive other assets from the marriage in addition to it.
Once marital assets (including the house) are identified and valued, they have to be distributed. This is where the court could order the home to be sold. The court may order it sold, for instance, if neither party can refinance it into their own name. Or the court could grant a request for a partition.
Avoiding the Force of Sale of the Marital House in a Divorce
What Is A Partition?
Either or both parties to a divorce can request that the court partition the property. This means forcing a sale of the house and requesting that the net proceeds be distributed equitably. A partition is often requested because the spouses can’t agree on who should get the house.
If you are seeking to force a sale of the house, you must request the partition in your divorce filing. The filing has to be made in the county where the house is located, and follow other legal requirements.
Agreeing To Sell The House
Ideally, you and your spouse can resolve equitable distribution outside of court, including with respect to the house. That includes agreeing to sell it and split the money. If you don’t care much about the house, you can use it as a bargaining chip to obtain a more favorable distribution of another asset (or a debt). But if you want to keep it, you should include terms to get the other spouse’s name off of it as quickly as possible.
If Your Divorce Forces the Sale of Your Marital House, Contact Orlando Family Team Today
The distribution of your marital home is one of the most consequential aspects of your divorce. At Orlando Family Team, we help our clients negotiate fair outcomes in equitable distribution cases. If your case cannot be resolved outside of court, we will aggressively defend your rights before the judge. Give us a call today to learn more about your options.