Florida law does not have an automatic rule about which spouse will be awarded the family home in a divorce, but there are three outcomes that commonly occur when a couple divorces after buying a house or condo. One spouse might buy out the other spouse’s interest and keep the home, the home might be sold so the proceeds can be split, or one spouse might keep the home temporarily to create stability for the children during the transition.
When you own a home, it is important to understand how Florida divorce law will affect your ownership interests and the steps you can take to achieve your goals for the future. Here we review how joint home ownership is addressed in divorce and what you can do to secure your priorities.
Is the House Considered Marital Property in Florida?
While a house lived in by both spouses is often treated as marital property in Florida, there are situations where it could be legally considered separate property owned solely by one spouse. As a general principle, property acquired while the partners are married is deemed to be jointly-owned marital property and property that spouses owned before they got married is considered as each spouse’s individual separate property. During a divorce, spouses keep their own separate property and their interests in marital property are divided.
If one spouse owned the house before the couple got married, the house could be treated as that spouse’s own individual property not subject to division. But if marital funds (like income from either spouse) were used to pay the mortgage or improve the property, Florida law provides a formula to ascertain the non-marital and marital value of the property.
The equity might have been increased by making mortgage payments during the marriage or completing renovations while the couple was married. Even if the payments or improvements were financed by the income of one spouse, if that income was earned during the marriage, it is marital property. When you invest that income in the house, that investment becomes marital property.
How Do Florida Courts Decide Who Gets the Marital Home?
Marital property in Florida is divided up in an equitable distribution scheme outlined in Section 61.075 of the Florida Statutes. This scheme starts with the premise that marital property will be divided equally, but then adjustments are made to account for factors such as:
- How much each spouse contributed to the process of housekeeping and raising the family
- How much each spouse contributed to the production of income for the family
- How much each spouse did to maintain or improve the home
- Whether one spouse interrupted their career or education to support the other
- The need to keep the family home as a place for the children to live
- Whether one spouse intentionally wasted assets in anticipation of divorce
Unlike many states, Florida allows courts to consider whether it is in the children’s best interests to keep the family home as a residence until the child is old enough to live independently.
Since so many factors go into the consideration of how the house and other property are divided, it is important to work with a divorce attorney who is prepared to make the right arguments to support your goals. If you really want to keep the house, your attorney can advocate that it would be equitable to award the house to you. On the other hand, if you don’t care about the house but you know your spouse does, your lawyer can use that as a bargaining chip to help you obtain the outcomes that mean most to you.
What Should You Do Before Deciding Who Gets the House?
Spouses can negotiate through their attorneys to decide what happens to the house. This is a great option, as most people prefer to remain in control of these big life decisions rather than leaving the decision to a judge. Before you and your soon-to-be ex decide what you want to do with the house, you should:
- Get a current valuation of the property
- Obtain the deed to the property
- Find out the outstanding balance on your mortgage
- Determine if there are any liens or debts against the property
- Gather records showing improvements made to the property
- Gather records about the purchase of the property showing the date
- Determine whether either spouse will be able to afford the mortgage and upkeep on their own
- Consider the housing needs of children or any other dependents
Before signing anything that affects your rights and interests in the property, review the document with your attorney and understand the full ramifications.
FAQs About What Happens to the House in a Florida Divorce
If you have children, does the spouse with custody automatically get the house in Florida?
No. Although the housing needs of the children are a consideration courts should keep in mind, there are many reasons the house could be awarded to the other spouse or sold, with the proceeds divided.
Does it matter whose name is on the deed?
For purposes of determining whether a house is marital property and how interests should be allocated in a divorce, the name or names on the deed are not really relevant.
What happens to the mortgage when homeowners get divorced?
Each party’s obligations under the mortgage loan note remain in effect until they work with the loan company to make other arrangements. This factor is often overlooked in divorce, and one party is often shocked to learn they are legally obligated to make payments even though the home was awarded to the other party in the divorce decree. Often, the spouse keeping the property must obtain a new mortgage in their name before the other spouse is released from their loan obligations.
What happens if neither spouse can afford to keep the house?
If neither spouse can qualify for an independent mortgage or keep up with expenses, then the house will usually need to be sold and the proceeds divided with the rest of the marital property. Alternatively, both former spouses may continue to make the mortgage payments together for a time to allow their children to remain in the home until it is later sold or one spouse can buy out the other’s interest.
Leap Frog Divorce Works to Help You Achieve Your Goals in Divorce
Whether you hope to stay in the family home forever or never want to see it again, you and your divorce attorney need to understand your priorities. At Leap Frog Divorce, we know the process is difficult and that it is hard to manage the emotions and decisions you need to make, and we partner with you to make the journey as smooth as possible. We work to obtain the outcome that means the most to you without unnecessary conflict, drama, or expense.
To find out more about the ways we can protect your interests and your peace of mind in divorce, schedule a consultation with us by calling 407-890-7297 or contacting us online today.
