Dividing the Marital Home

Florida Divorce Lawyer

Dividing the couple’s property is one of the most important issues in a Florida divorce. Often, the most valuable asset that a couple possesses is the marital home. Deciding who keeps the home, or whether to sell it, is a significant decision, and dividing the home is often difficult. If you are considering divorce and wondering what will happen to your real property, you should consult an experienced family law attorney to review your options.

Marital Property

Florida’s equitable distribution statute provides that only marital property is divided in a divorce. This means that a couple’s house is not always subject to distribution. If the property is held as a tenancy by the entirety, it is presumed to be marital property, subject to distribution. But if the house was purchased before the marriage, it is presumed to be separate property, and will not be divided. However, if a spouse can show that the home was purchased with joint funds, that overcomes the presumption, and it will be treated as marital property.

In some cases, a home may be deemed to be partly marital property. This happens if the couple used marital funds to pay a mortgage or if they used marital funds or labor to improve the property.

Valuing the Property

If the house is partly or all marital property, then its value must be assessed. If the couple cannot agree on the fair market value, they can get it valued by a third party:

  • Tax assessor: This valuation is often inaccurate and is generally lower than fair market value;
  • Real estate appraiser: Generally fairly accurate, but costs several hundred dollars; or
  • Realtor: This method is inexpensive or free, but because realtors price to sell, the valuation is often too high.

Then after the fair market value is determined, the value of any mortgages or liens must be deducted. The result is the actual value of the home.

Settlement Agreement

Ideally, the spouses will be able to reach a settlement agreement in which they agree how to divide the house. One spouse may buy the other out or the couple may sell the home and split proceeds. In some cases, the couple has enough other assets that one spouse can take the entire value of the home, while the other spouse offsets that by receiving other assets.

Court Order

If the spouses cannot agree on how to divide the property, the court will make that determination. The court may award the home to either spouse, or may order them to sell the home and split the proceeds. Courts will consider each spouse’s ability to afford the expenses associated with taxes, mortgage, and upkeep.

Often, the court will assign the marital home to the spouse with primary custody of the children, in order to preserve stability and avoid uprooting the children from their home. The court may also split the equity between the spouses, but order them to wait until the children have grown to sell the home.

Partition and Orders of Sale

Sometimes, one spouse wants to force division of the home. Either spouse may file a civil partition action, separate from the divorce proceedings. This will result in either partition in kind or an order of sale. Partition in kind is rare in marital homes because it means a physical division, which is often impracticable when dividing a house.

An order of sale is used when the land cannot be physically divided without injustice. Thus, partition actions for family homes usually result in orders of sale. In an order of sale, the land is sold at public auction and the court divides the proceeds between the spouses in proportion to their ownership interests.

If you are considering divorce, an attorney can help you make sure you get your fair share of the marital property. Please contact West Palm Beach family law attorney William Wallshein to schedule a free initial consultation.