What Happens to the House in a Florida Divorce?

By Larry Schott, Florida Family Law Attorney  |  Schott & Tolchinsky, P.A.

For most couples going through a divorce in Florida, the family home is the largest and most emotionally significant asset in the entire proceeding. It is often where children have grown up, where memories live, and where a significant portion of the couple’s net worth is tied up. What happens to it depends on whether it is marital property, how much equity it holds, whether children are involved, and whether the parties can reach an agreement.

This guide explains the law, the options, and the practical realities of dividing a home in a Florida divorce.

1. Is the House Marital Property?

The first question a Florida court asks about any asset is whether it is marital or non-marital property. Only marital property is subject to equitable distribution. Non-marital property stays with the spouse who owns it.

In most Florida divorces, the family home is marital property. If the home was purchased during the marriage using income earned during the marriage, it is marital regardless of whose name is on the deed. If the mortgage has been paid with marital funds, the equity built up during the marriage is marital even if one spouse owned the home before the wedding.

The home becomes a more complicated question when one spouse owned it before the marriage, when premarital funds were used as the down payment, or when one spouse received the home as an inheritance. In those situations, the home may be partially marital and partially non-marital, with only the marital portion subject to division. For a full discussion of how this works, see our guide: Marital vs. Non-Marital Property in Florida.

2. How the Home Is Valued

Before the home can be divided, it needs to be valued. The value the court works with is the current fair market value of the home minus the outstanding mortgage balance and any other liens. The resulting number is the equity, and it is the equity that is subject to equitable distribution.

When both spouses agree on the value, the process is simple. When they disagree, each side typically retains their own appraiser. Courts give significant weight to professional appraisals. The tax-assessed value shown on the property tax bill is not the same as fair market value and is generally not a reliable basis for division purposes.

The valuation date matters. Under Florida Statute 61.075, the court has discretion to value different assets as of different dates when the circumstances warrant. In a rising real estate market, the date of valuation can mean tens of thousands of dollars of difference in the equity calculation. This is worth discussing with your attorney early in the case.

3. The Three Main Options for the Marital Home

When it comes time to actually divide the home, Florida courts and parties have three primary options. Which one applies depends on the financial circumstances of both parties, whether children are involved, and what both spouses can agree to.

• One spouse buys out the other The most common resolution when one spouse wants to keep the home. The staying spouse refinances the mortgage in their name alone and pays the departing spouse their share of the equity. The buyout can be funded through a cash payment, through offsetting other marital assets such as giving the departing spouse a larger share of retirement accounts, or through an owelty lien, which is a lien placed on the property that entitles the departing spouse to their equity when the home is later sold or refinanced. The key requirement for a buyout is that the staying spouse must qualify for a new mortgage on their own income alone after the divorce, which in today’s interest rate environment is not always feasible.
• The home is sold and proceeds are divided When neither spouse wants to keep the home, when neither can qualify for refinancing alone, or when the parties simply cannot agree, the court can order the home sold and the net proceeds divided equitably between the spouses. This is the cleanest resolution because it converts the asset to cash and severs the financial relationship between the parties entirely. Both spouses must cooperate with the sale process, and the settlement agreement or court order should specify how decisions about listing price, agent selection, and offer acceptance will be made.
• Deferred sale with exclusive use and possession In cases involving minor children, the court may award one parent exclusive use and possession of the marital home for a defined period, typically until the youngest child graduates high school or reaches the age of majority. During that period, the home is not sold. At the end of the period, the home is sold and the equity is divided as agreed or ordered. This arrangement is designed to provide stability for the children but comes with financial complexity. The agreement must specify who pays the mortgage, taxes, insurance, and maintenance during the deferral period, and what happens if the staying spouse fails to make those payments.

4. Do You Have to Sell Your House in a Divorce in Florida?

No, you are not automatically required to sell the house in a Florida divorce. Selling is one option, not a requirement. Whether a sale is ordered depends on whether the parties can agree on an alternative and whether a buyout or deferred arrangement is financially feasible given the circumstances.

If you and your spouse can reach an agreement about the home as part of a marital settlement agreement, you can structure it in any way that works for both of you. You can agree that one spouse keeps the home and refinances, that the home is sold, that the sale is deferred, or any other arrangement that both parties accept and the court approves.

Where a forced sale typically becomes unavoidable is in contested cases where neither spouse can afford to buy the other out, neither wants to sell, and the court has no practical alternative. Under Florida Statute 61.077, a court presiding over a dissolution of marriage has the authority to order partition and sale of real property when equitable distribution cannot otherwise be achieved. Courts use this authority when no other resolution is available.

The best way to avoid a court-ordered sale you do not want is to reach agreement on the home before the matter goes to a judge. An experienced divorce attorney can help you negotiate terms that reflect your priorities and that are financially realistic given the current market and lending environment in Broward County.

5. What Happens to the House When Children Are Involved?

When minor children are involved, the family home takes on additional significance in the divorce. Florida courts consider the best interests of the children when making decisions about property, and the family home is where that consideration most directly applies.

Courts may award exclusive use and possession of the marital home to the primary residential parent for a defined period, recognizing that keeping children in their home, school district, and neighborhood minimizes disruption during an already difficult transition. This does not mean the home becomes the staying parent’s property. The other spouse retains their ownership interest and their right to equity, which is preserved and paid out when the home is eventually sold.

The deferred sale arrangement requires careful drafting. The marital settlement agreement or final judgment must address all of the following clearly to avoid future disputes:

• Who pays the mortgage during the deferral period Typically the staying parent, though this affects both the child support calculation and the equitable distribution of the equity at the time of sale.
• Who pays property taxes, homeowner’s insurance, and maintenance These ongoing costs need to be assigned clearly. Disputes over who should pay for a roof repair or a broken HVAC system five years after the divorce are common when the agreement is silent on maintenance responsibilities.
• What triggers the sale The most common trigger is the youngest child reaching 18 or graduating high school. The agreement should specify which event controls and what happens if the child leaves home earlier.
• How equity is divided at the time of sale The division at the eventual sale should be specified in the agreement. If mortgage payments during the deferral period are credited toward the staying spouse’s share of equity, that calculation needs to be explicit.
• What happens if the staying spouse cannot maintain the mortgage If the staying spouse stops making payments, both parties’ credit is at risk and the departing spouse has no control over a property they no longer live in. The agreement should include a remedy, such as triggering an immediate sale, to address this scenario.

6. When One Spouse Stays in the Home During the Divorce: The Rental Value Issue

A question that comes up in many Florida divorces is what happens when one spouse remains in the marital home while the case is pending. The staying spouse has exclusive use and possession of an asset that belongs to both parties. The departing spouse, by contrast, has to pay for housing elsewhere while their equity in the home sits inaccessible to them. Is the departing spouse entitled to any credit or compensation for that imbalance?

The answer under Florida law is that the departing spouse may be entitled to a setoff for the fair rental value of their share of the marital home during the period the other spouse had exclusive possession. Courts must consider the factors set out in Florida Statute 61.077 before denying that credit. This is a point that many people going through a divorce, and even some attorneys, overlook.

What Caine illustrates for people going through a divorce is that the financial consequences of exclusive possession of the marital home during the case are not simply assumed away. The departing spouse has a legitimate legal argument for credit against the final equitable distribution if the other spouse has been living in and benefiting from a jointly owned asset throughout the pendency of the case. This argument needs to be raised and preserved in the trial court, supported by evidence of the fair rental value of the home, and the trial court must address it with findings on the Florida Statute 61.077 factors before denying it.

If you are the spouse who has moved out of the marital home while your divorce is pending, talk to your attorney about whether a rental value credit is appropriate in your case and how to preserve that claim in the proceedings.

7. What Happens to the House in an Uncontested Divorce?

In an uncontested divorce, both spouses have reached full agreement on all terms before the court finalizes the dissolution. This includes what happens to the marital home. The agreement they reach is incorporated into the marital settlement agreement, which the judge reviews and, if it complies with Florida law, approves as part of the final judgment.

In an uncontested case, the parties have complete flexibility to structure the home disposition in whatever way makes sense for their situation. Courts generally will not second-guess a voluntary agreement between two informed spouses on property division, as long as the terms are not unconscionable or contrary to law. This means couples in an uncontested divorce can agree to an unequal split of the equity, a creative buyout structure, a deferred sale on their own terms, or any other arrangement that both parties genuinely accept.

The marital settlement agreement must be specific. Courts routinely see agreements that say something like “the parties will decide what to do with the house later” or “the home will be divided fairly.” Those provisions are unenforceable. The agreement must specify exactly what will happen, when it will happen, and what the financial terms are. Vague language on the home is one of the most common reasons couples end up back in court after a divorce they thought was fully resolved.

For a full explanation of what an uncontested divorce requires in Florida and what happens when something is overlooked in the settlement, see our guide: Uncontested Divorce in Florida: What It Takes and How to Do It Right.

8. What Happens to the Mortgage?

The mortgage is one of the most practically important and frequently misunderstood aspects of dividing the family home. A divorce judgment does not change your obligations to your mortgage lender. If both spouses signed the promissory note, both remain legally responsible to the lender regardless of what the divorce decree says.

What this means in practice: if the settlement agreement awards the home to one spouse who is ordered to make the mortgage payments, and that spouse stops paying, the lender can pursue both spouses for the debt. The departing spouse has a legal claim against the staying spouse for the breach of the settlement agreement, but their credit is already damaged by the missed payments. This is a real risk that must be addressed in the agreement.

The cleanest way to handle the mortgage when one spouse keeps the home is refinancing. When the staying spouse refinances in their own name, the other spouse is removed from the mortgage entirely and their legal exposure ends. The refinance also typically requires a new title deed removing the departing spouse from ownership, which is accomplished through a quitclaim deed recorded with the Broward County Property Appraiser.

9. What If You Owned the Home Before the Marriage?

Owning the home before the marriage does not automatically protect it from equitable distribution in a Florida divorce. What it means is that the home may have both a non-marital component and a marital component, and the two need to be separated.

The non-marital portion is generally the value of the home at the time of the marriage, assuming no marital funds were used toward it and the character of the property was kept separate. The marital portion includes any equity built during the marriage through mortgage payments made with marital income, any appreciation in value attributable to improvements funded by marital money or marital labor, and any active appreciation resulting from either spouse’s efforts during the marriage.

Passive appreciation, meaning the increase in value simply because of market forces with no marital contribution, is generally non-marital and stays with the original owner. Active appreciation resulting from marital effort or marital funds is marital property subject to division.

If marital funds were used to pay the mortgage during the marriage, a portion of the equity belongs to the marital estate even if the home was fully owned by one spouse before the wedding. Tracing the non-marital contribution and calculating the marital portion accurately requires documentation going back to the date of the marriage and often benefits from the help of a forensic accountant in complex cases.

10. What If the Home Is Worth Less Than the Mortgage?

When the home has negative equity, meaning the mortgage balance exceeds the current market value, the calculation changes entirely. There is no equity to divide. Instead, the parties are dealing with a marital liability, and the question becomes who takes responsibility for the debt.

Options in an underwater home situation include negotiating a short sale with the lender, with the proceeds applied to the mortgage and any deficiency addressed in the settlement; one spouse assuming responsibility for the full mortgage in exchange for other concessions in the settlement; or continuing to hold the home jointly until the market recovers enough to sell without a deficiency, which requires an ongoing co-ownership agreement that is difficult to manage after a divorce.

Courts handle underwater homes through the same equitable distribution framework as any other liability. The goal is a fair allocation of the debt burden given the financial circumstances of both parties. When neither party can afford to maintain the home alone and a short sale is the most realistic option, courts can and do order that outcome.

11. Protecting Your Interests in the Family Home

Whether your priority is keeping the home, getting your fair share of the equity, or making sure you are off the mortgage as quickly as possible, the steps to protect your interests are the same.

• Get a professional appraisal early Knowing the actual current market value of the home gives you a realistic basis for negotiation. Do not rely on online estimates or tax-assessed values, which may be significantly different from what the home would sell for today.
• Get mortgage pre-qualification before committing to a buyout If you want to keep the home, find out whether you can qualify for the mortgage on your own before agreeing to it in the settlement. Discovering you cannot qualify after the agreement is signed creates serious problems.
• Make sure the settlement agreement is specific Vague provisions about the house lead to disputes after the divorce is final. Every material term should be spelled out, including deadlines, who pays what, and what happens if the plan does not work out.
• Address the mortgage separately from the deed If you are the departing spouse, make sure the settlement requires the staying spouse to refinance within a specific timeframe. An owelty lien protects your equity interest if the home is not immediately sold or refinanced.
• Consider the tax implications The sale of a primary residence may qualify for a capital gains exclusion of up to $250,000 per person under federal tax law. How the home is transferred in the divorce, and when it is sold, can affect whether that exclusion applies. Consulting a tax advisor alongside your divorce attorney is worth the time when the home has significant appreciation.

Related Articles:

• How to Divide Marital Assets in Florida During a Divorce
• Marital vs. Non-Marital Property in Florida
• Uncontested Divorce in Florida: What It Takes and How to Do It Right
• Case Examples of Alimony and the Marital Residence
• Step-by-Step Guide to Getting a Divorce in Broward County
• How Much Does a Divorce Cost in Florida?