Florida is not a community property state. Here, marital assets and liabilities need to be divided equitably (not equally) – and that includes any real estate owned by the couple. The court first needs to determine if the real estate is marital property or not. If the home was acquired during the marriage, it becomes marital property. If the property was owned by one of the parties prior to the marriage, it likely will be considered that partner’s assets instead of joint. It is separate from marital property.
Regardless of when the home was purchased, however, if the deed to the house is in the name of both parties, it may become marital property and can be treated as such. The same is the case if the non-owning spouse has equal access to the property, or if marital funds (belonging to both parties) are used to make mortgage payments or improvements on the property. Such a case is considered co-mingling of assets and can blur ownership.
Co-mingling of assets can become complicated, and it is strongly advised that the parties involved seek the advice of a divorce attorney.
Mortgage After a Divorce
If the property is not sold as a part of the divorce agreement, one party will need to make the mortgage payments each month. If the said party fails to make the payments, the mortgagor will hold both parties responsible if both names are on the promissory note. In such an event, the party who is not legally responsible for payments according to the divorce settlement agreement needs an indemnification from the other party. To state it more clearly, the legally non-responsible party can seek compensation for his or her losses from the non-compliant party due to his or her failure to make needed payments.
Both parties signing the divorce settlement agreements need to be aware of the stipulations regarding the sale of the property or the particulars regarding the mortgage payments.
When drafting divorce settlement agreements for cases involving real estate, pay special attention to any clauses regarding a sale of the property or assumption of the mortgage debt. For example, in a specific Florida case, the ex-wife petitioned the court (in McDonald v. McDonald) for the right to sell the property after her ex negated his responsibility to make mortgage payments. The court determined she had no right to sell because the non-payment issues were not properly stated in the settlement agreement.
Selling a Jointly Owned Property
The sale of a marital home needs to be partitioned with the court in the county where the home is located. This partition needs to include the names and addresses of all parties with an interest in the home and their particular share of such interest.
In Florida, when a married couple purchases a home together, it is considered a tenancy by the entirety. Both parties are entitled to profits from the sale of the property and are responsible for any debts arising therefrom. In addition, the creditor of one spouse cannot go after the property held in a tenancy by the entirety without the consent of both parties.
A tenancy by the entirety (i.e., held in both names) is considered a marital asset, even if it was purchased before the marriage. Conversely, property purchased prior to the marriage by only one of the parties without both parties in the title is considered separate property. If the party not on the title wishes to dispute this, he or she needs to prove that he or she contributed financially to the purchase.
Property Classified as Homestead Property in Florida
Florida’s homestead exemption is designed to prevent judgment by creditors on a property deemed to be the owner’s principal residence. This means a creditor will not be able to force the sale of the house to satisfy a debt, and the law will block a creditor’s attempt to establish a lien on the home. It may also reduce taxes on the property. However, the homestead exemption must be established before any creditor takes legal action.
The benefit of a homestead classification is that it offers added protection to the owners in the event of financial difficulties. The couple should be able to prove that the property is their primary residence, and both parties must agree if the homestead property is to be sold. Considering the benefits of homestead property, both parties should consult with an attorney to ensure that the exemption is drafted properly
Rare exceptions to the homestead exemption include tax payments for the property or labor-related payments pertaining to the improvement of the home.
A house is usually a couple’s greatest asset. Both should take steps to protect their interests before a divorce in order not to lose an asset to which they are entitled.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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