One of the biggest questions to resolve in your divorce is who gets the marital home. Houses are major assets and are often the source of significant conflict between divorcing spouses. It is possible that the judge will force the sale of the marital house in your divorce.
Whether you want the house or are willing to give it up, Orlando Family Team is experienced with all aspects of Florida property division and ready to help you. Contact us today for a confidential consultation.
How Will The House Be Divided During Divorce?
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.
Understanding Equitable Distribution
Florida law follows the rules of equitable distribution to divide marital assets. 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. The judge will consider several statutory factors to decide what is fair. After this process, one spouse might retain the right to stay in the house, or the couple could be required to sell the property and divide the proceeds.
Does the Marriage Involve Minor Children?
One of the factors in deciding on the marital home is whether either spouse should be given possession of the marital home 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 evaluate the equitable distribution factors to see the most fair outcome. However, the parties get some say in this decision if they agree to compromise and decide what happens to the house.
Most settled cases result in one of two outcomes: The house is sold, and the net proceeds (after paying off the outstanding mortgage balance, taxes, and other expenses) are divided among the spouses in a certain percentage. 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 will be split.
Can the Court Force the Sale of the Marital House in a Divorce?
To understand whether your house needs to be sold, you must know the court’s role if the parties cannot decide what to do with it. First, the court must decide that the house is marital property subject to the rules of equitable distribution. If you owned the house before you were married, you may argue 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 share the responsibilities or financial obligations of the house, an argument can be made that both have some interest in the property or its equity.
How Is the Value of the House Determined?
If the home is indeed marital, the court must determine its value. 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 given the house, you will probably want its value to be low. That way, you can also receive other assets from the marriage.
Once marital assets (including the house) are identified and valued, they must be distributed. The court could order the home sold if neither party can refinance it into their name, or it could grant a request for a partition.
Can You Sell the Marital House in a Divorce?
Either or both parties to a divorce can request the court to sell the property in a partition action. 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 want to force the sale of the house, you must request the partition in your divorce filing. The filing must be made in the county where the house is located and follow other legal requirements.
When the Parties Agree To Sell The House
Ideally, you and your spouse can agree to sell the marital house and split the money. If you don’t care much about the home, 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.
Protect Your Marital House in a Divorce
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.
