Dividing the family home is one of the most complex and emotionally charged aspects of a divorce, especially in Florida where property division laws play a significant role in determining how assets are split between spouses. If you’re facing a divorce, understanding how the family home is divided is crucial, as it can affect your finances, living situation, and emotional well-being.

This blog post will explore the key factors involved in dividing real property in a Florida divorce, including whether the home will be sold, whether one party will retain ownership, and how mortgage obligations are handled. Whether you’re in the process of divorce or preparing for what’s to come, understanding how Florida handles property division can help you make informed decisions about your home and other assets.

Florida’s Equitable Distribution Law: The Foundation of Property Division

Florida follows an “equitable distribution” model when dividing property during a divorce. This means that marital assets, including the family home, are divided in a way that is fair but not necessarily equal. The court takes several factors into account when determining what is fair, including the length of the marriage, each spouse’s economic circumstances, and contributions to the marriage—both financial and non-financial.

It’s important to note that “equitable” doesn’t mean “equal.” In other words, one spouse may end up with more of the marital property than the other, but the division is based on fairness as determined by the judge, rather than a strict 50/50 split.

When it comes to real property, such as the family home, there are several key factors to consider. Whether you and your spouse decide to sell the home or one of you retains ownership, these considerations will influence the decision-making process.

Determining Whether the Family Home is Marital or Non-Marital Property

Before discussing the fate of the family home, it’s essential to determine whether the home is marital or non-marital property. Marital property generally includes any assets acquired during the marriage, regardless of whose name is on the title or mortgage. This can include the family home, if it was purchased during the marriage.

On the other hand, non-marital property refers to assets that were acquired before the marriage or assets that were specifically gifted to one spouse or inherited by one spouse during the marriage. If the home was owned by one spouse before the marriage, it might be considered non-marital property. However, if the non-marital home was renovated or improved during the marriage with marital funds or labor, the increase in value could be considered marital property.

What Happens to the Family Home in a Divorce?

Once it’s determined that the family home is marital property, the next question is: what happens to it in the divorce? There are several possibilities:

1. Selling the Family Home

One of the most common outcomes in a divorce is that the family home is sold, and the proceeds are divided between the spouses. This approach can be an attractive option if neither spouse is in a position to afford the home on their own or if the spouses are both ready to move on and start fresh.

Selling the home can also provide a clean financial break, as the proceeds from the sale can be used to pay off the mortgage and any remaining debts. The remaining funds after the mortgage is paid off will then be divided between the parties, usually in a way that reflects the equitable distribution guidelines.

However, selling the family home may not always be the ideal solution. The real estate market conditions at the time of divorce can play a significant role in determining whether selling the home is a financially sound decision. If the market is slow or if there is little equity in the home, selling might not result in a significant financial gain for either spouse.

2. One Spouse Retaining Ownership of the Home

In some cases, one spouse may choose to retain ownership of the family home, either by buying out the other spouse’s interest or by negotiating a settlement where the house stays with one party. This often happens when one spouse wants to stay in the home for emotional or practical reasons, such as providing stability for children.

If one spouse keeps the home, they will usually be required to pay the other spouse for their share of the equity. The amount paid will depend on the value of the home and the share of equity that is being allocated to the other spouse. The court may also order that the spouse who retains the home refinance the mortgage to remove the other spouse’s name from the loan, which can be a complicated and financially challenging process.

A few considerations when one spouse retains the home include:

• Mortgage and financial obligations: The spouse keeping the home must be able to demonstrate that they can afford the mortgage payments on their own. If the remaining spouse can’t afford the mortgage, they may need to refinance or buy out the other spouse’s interest in the property.
• Home’s market value: The value of the home will need to be determined, either through a professional appraisal or other means. This valuation will guide the financial arrangements of the divorce.

3. Co-Ownership of the Home Post-Divorce

In some instances, especially if children are involved, both parties may agree to co-own the home for a period after the divorce. This arrangement allows one spouse to live in the home with the children, while the other spouse may have visitation rights or receive financial compensation.

Co-ownership can be beneficial if children are involved, as it helps maintain continuity and stability for them. However, this arrangement is not without its complications. The co-owners will still be responsible for mortgage payments, maintenance costs, and other home-related expenses. As time goes on, the practicality of co-owning a home post-divorce may become more difficult to manage.

Handling Mortgage Obligations in Divorce

One of the most critical considerations when dividing the family home in a divorce is how to handle the mortgage obligations. The mortgage is usually one of the largest debts the couple has, and both spouses are typically responsible for the debt during the marriage, even if one spouse is primarily responsible for making the mortgage payments.

If the family home is sold, the mortgage debt is paid off with the proceeds from the sale. However, if one spouse keeps the home, it’s essential to consider how the mortgage will be handled moving forward.

1. Refinancing the Mortgage

If one spouse wants to keep the family home after the divorce, they may need to refinance the mortgage in their name alone. Refinancing allows the spouse who retains the home to assume full responsibility for the mortgage, while removing the other spouse from the loan. This can be a crucial step in ensuring that both parties are financially independent post-divorce.

Refinancing the mortgage, however, can be a difficult process if one spouse does not have the financial means to afford the home on their own. The lender will assess the spouse’s income, credit score, and other financial factors to determine whether refinancing is feasible. If the refinancing application is denied, the spouse who wants to keep the home may need to consider alternative arrangements, such as selling the property or working out a payment plan with the other spouse.

2. Keeping Both Names on the Mortgage

In some cases, both parties may remain on the mortgage, even if one spouse is living in the home. While this may seem like an easy solution, it can create financial complications, especially if the spouse who is not living in the home is no longer contributing to the mortgage payments.

If both parties remain on the mortgage, they will be jointly responsible for making the payments. This means that if the spouse who remains in the home misses a payment, the other spouse’s credit could be negatively impacted. In addition, the spouse who moves out may still be liable for the mortgage debt, even if they no longer live in the property.

What to Do if You Can’t Agree on the Family Home

In many divorces, the division of the family home is a contentious issue. If you and your spouse cannot agree on whether to sell the home, who will keep it, or how to handle mortgage obligations, the court may step in to make a final decision.

The court will typically use the factors outlined in Florida’s equitable distribution laws to determine what is fair and just. In some cases, the judge may order the sale of the home, the buyout of one spouse’s interest, or another solution that ensures both parties’ financial interests are protected.

Conclusion

The fate of the family home in a Florida divorce is a complex matter that depends on a variety of factors, including the nature of the property, the financial situations of both spouses, and the best interests of any children involved. Whether the home is sold, one spouse retains ownership, or the parties choose to co-own the property post-divorce, it’s essential to carefully consider all aspects of the situation.

As you navigate the divorce process, it’s crucial to consult with a family law attorney who is experienced in handling real property issues in divorce cases. A knowledgeable attorney can help you understand your rights, make informed decisions, and ensure that the division of the family home is handled in a way that protects your interests.

At Burns Family Law, we understand the emotional and financial complexities of divorce and are here to guide you through the process. If you have questions or need assistance in dealing with the family home in your divorce, contact us today to schedule a consultation.