Who Gets The House In A Florida Divorce?

Florida is an equitable distribution state. Under Fla. Stat. §61.075, courts start from a presumption that marital assets and debts are divided equally, then adjust if statutory factors justify something unequal.

“Equitable” means fair, not automatically 50/50 - but in practice, equal is the starting point and most cases land close to it.

Here’s how that plays out with the house specifically.

Marital vs. non-marital property

Only marital property gets divided. Generally:

Marital - anything acquired during the marriage, regardless of whose name is on it. Includes the house if you bought it after the wedding, and the increase in value of a non-marital asset if marital funds or effort contributed to it.

Non-marital - property owned before the marriage, inherited by one spouse, or received as a gift to one spouse. Also anything a valid prenuptial agreement designates.

The complication: non-marital property gets “commingled” constantly. If you owned the house before marriage but paid the mortgage with joint income for twelve years, the paydown and a share of the appreciation are likely marital. If your spouse’s name went on the deed, a court may treat the whole thing as a gift to the marriage.

If the house predates the marriage, get a family law attorney’s read early. This is where real money is won and lost.

Who gets to stay in it

Two different questions: who owns it, and who lives in it during the case.

Under §61.075(1)(h), a court may award exclusive use and possession of the marital home, considering the desirability of keeping it as a residence for a dependent child - when that’s in the child’s best interest and financially feasible.

Courts look first at whether staying serves the children. If there are no minor children, exclusive possession is harder to get and less common.

“Financially feasible” does a lot of work here. Judges won’t award a house to someone who can’t carry it.

The mortgage mistake that ruins people

This is the most important thing on this page.

A divorce decree does not remove you from the mortgage. Neither does a quit claim deed.

The judge can order your ex to pay the mortgage. The lender was not a party to your divorce and is not bound by the decree. If your name is on the note and your ex stops paying:

• Your credit is destroyed
• The foreclosure appears on your record
• You can’t qualify for a new mortgage because lenders still count that debt
• Your only remedy is dragging your ex back to court for contempt - which doesn’t fix your credit

A quit claim deed transfers ownership only. See Florida quit claim deeds.

The only three ways off the loan

1. Refinance. The spouse keeping the house refinances in their own name. Requires them to qualify alone. This is the standard solution.
2. Loan assumption with release of liability. Some loans - many FHA and VA loans - allow it. Call the servicer and ask specifically whether the loan is assumable and whether they offer a release of liability. Most conventional loans don’t.
3. Sell the house and pay off the loan.

Put a deadline in the agreement. If the settlement says your ex keeps the house, it should also say they must refinance within a set period - often 6 to 12 months - and that the house must be sold if they can’t. Without that clause, you can be stuck on the loan for decades.

Your three real options

1. One spouse buys the other out

Get an appraisal. Determine the equity (value minus payoff). The keeping spouse pays the other their share

• usually by refinancing and pulling cash out.

Works when: they can qualify alone at current rates, and there’s enough equity. Fails when: rates are higher than the existing loan, income dropped after separation, or the equity isn’t there.

That second point is significant right now. A spouse sitting on a 3% mortgage from 2021 may find that refinancing at current rates makes the payment unaffordable even though they could carry the old one.

2. Sell it and split the proceeds

The cleanest option and the most common. Both names come off the loan, the equity converts to cash, and neither of you is tied to the other financially.

The friction is practical: you have to cooperate on price, agent, repairs, showings, and offers with someone you’re divorcing. Put the mechanics in the agreement - who chooses the agent, what the list price is, what the minimum acceptable offer is, who pays carrying costs until closing - so you’re not negotiating each one during litigation.

3. Keep it jointly for now

Sometimes used to let children finish a school year. Requires a written agreement covering who pays what, who lives there, when it gets sold, and how proceeds split.

Risky. You remain financially entangled with someone you’re divorcing. Only do this with a firm end date in writing.

Selling during vs. after the divorce

During: both spouses must sign. Depending on your circuit and any standing temporary orders, you may need court approval or a written stipulation before you can list or close. Ask your attorney before you sign anything.

After: the final judgment should specify who has authority to sell and how proceeds divide. Much simpler.

Note that in Florida, homestead property held by spouses generally requires both signatures on the deed regardless of whose name is on the title.

What happens to the equity

Marital equity - the increase in value and the mortgage paydown during the marriage - is divided. The court may adjust for:

• Non-marital contributions (a down payment from an inheritance, for example)
• Post-separation payments by one spouse
• Waste or intentional dissipation of assets by either party

Document everything. If you paid the mortgage alone for eighteen months after your spouse moved out, keep the records. It matters in the final accounting.

When selling as-is for cash makes sense

It does when:

• Neither spouse can afford to buy the other out and you both need this finished
• The house needs work neither of you will fund or coordinate
• Cooperating on a 90-day listing - showings, inspections, negotiations - isn’t realistic
• There’s a court deadline
• Privacy matters and you’d rather not have neighbors touring the house

It doesn’t when:

• The house shows well and you can both behave for 60 days - list it, you’ll net more, and that difference is split between you
• One spouse can genuinely refinance and wants to stay

We buy houses for cash and we’ll still tell you that a cooperative listing usually nets more. If you can manage it, do that. If you genuinely can’t, speed and certainty have value too - sometimes ending the entanglement six weeks sooner is worth more than the last few percent.

Frequently asked questions

Who gets the house in a Florida divorce? There’s no automatic answer. Florida uses equitable distribution under §61.075, starting from a presumption of equal division. Courts may award exclusive use to the parent with the children when it’s financially feasible.

Can I be forced to sell my house in a divorce in Florida? Yes. If neither spouse can buy the other out, a court can order the marital home sold and the proceeds divided.

Does a quit claim deed remove my name from the mortgage? No. It transfers ownership only. You stay liable until the loan is refinanced, assumed with a release, or paid off.

Do I have to refinance after divorce? Only if you’re keeping the house and want your ex off the loan. Otherwise you both stay liable.

Can we sell the house before the divorce is final? Yes, with both signatures, and sometimes with court approval or a written stipulation. Ask your attorney.

What if my spouse won’t agree to sell? Raise it with the court. Judges regularly order the marital home sold when neither party can afford to keep it.

Is the house marital property if I owned it before the marriage? Partly. The pre-marital value is generally non-marital, but mortgage paydown and appreciation attributable to marital funds or effort are usually marital.

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General information about Florida law, not legal advice. Divorce and property division are highly fact-specific. Consult a Florida family law attorney before signing a settlement agreement or transferring any interest in real property.

Beach Bums Real Estate buys houses for cash in Orlando and Central Florida, including divorce situations where speed, privacy, and a clean split matter. Call (689) 249-4888.