Who Gets the House in a Florida Divorce?

For most couples the house is the most valuable asset and the most emotional one. It is also where the most myths live: "the house is in my name, so it's mine," "whoever moves out loses the house," "the mother always keeps it." None of those is the rule in Florida.

The rule: equitable distribution

Florida divides marital assets and debts under equitable distribution (section 61.075). The judge starts from the premise that marital property is split equally, and departs from that only when there are reasons that justify it. Before dividing anything, one question has to be answered: is the house a marital asset?

Is the house marital or not?

• Bought during the marriage: generally marital, no matter whose name is on the deed or who made the mortgage payments.
• Bought by one spouse before the wedding: generally that spouse's. But if the mortgage was paid with marital income during the marriage, or improvements were made with the couple's money or labor, part of the value can be marital.
• Inherited by or gifted to one spouse only: generally not marital, as long as it was kept separate.
• Titled to both of you as spouses: presumed marital, even if one of you bought it before the marriage. If you added your spouse to the deed, the house most likely belongs to both of you now.
• With a prenuptial or postnuptial agreement: a valid agreement can change all of these rules.

The three most common outcomes

1. One spouse keeps the house and buys out the other. You calculate the equity (the home's value minus the mortgage) and the spouse who stays pays the other their half, in cash or by giving up other assets, such as a retirement account. It almost always requires refinancing.
2. You sell and split the proceeds. The cleanest exit when neither of you can carry the house alone.
3. One spouse stays for a while and you sell later. When there are minor children, the agreement or the judge can give one parent exclusive use of the home for a period, for example until the school year ends or until a set date, and then the house is sold or bought out.

Watch the mortgage

This is the mistake that causes the most trouble after a divorce. The divorce judgment divides the house between the two of you, but it doesn't bind the bank. If you both signed the loan, you both still owe it until it is refinanced or paid off, whatever the judgment says. Signing a quitclaim deed takes you off the title, not off the debt. If you are giving up the house, ask that the agreement set a deadline to refinance and say what happens if it is missed (usually, the house is sold).

While the divorce is pending

• Moving out doesn't mean losing the house. Your interest in a marital asset doesn't depend on who lives there. That said, if you have children, moving out can influence the temporary schedule, so get advice before you leave.
• Don't sell, transfer or borrow against the house without an agreement or the judge's permission. Many Central Florida courts issue an order at the start of the case that forbids it.
• Keep paying the mortgage. A missed payment hurts both credit scores and can end in foreclosure. Who pays in the meantime can be agreed or decided by the judge.
• If you suspect your spouse is hiding money or property, see our guide on hidden assets in a Florida divorce.

If you agree, everything is simpler

When a couple agrees on the house, the divorce can go through as an uncontested divorce for a flat fee: $2,500 without children and $3,500 with children. We draft the agreement so the house and mortgage terms are clear and enforceable. If there is no agreement, we represent you in the divorce case. The first 15-minute phone call is free.

Frequently asked questions