Generally, under Florida divorce law, you may not have to sell the home in a divorce. When a couple seeks to force the sale or division of the marital home, a civil action for partition is necessary. If the Florida family law court grants the application for partition, the home may be either divided amongst the parties or sold with the proceeds being divided amongst the couple. If you are seeking to partition a home or prevent the partition you should seek the advice of an experienced divorce attorney in Tampa. Knowing how to sell the home in a divorce or prevent a partition can be difficult without legal counsel.
How to Sell the Home in a Divorce if Owned Jointly
Under Florida Statute §689.115, when a married couple jointly purchases a home or other personal property it is presumed that the property will be held as a tenancy by the entireties. In a tenancy by the entireties, the property is owned by the marital union, rather than by the individual spouses. Each party to the marriage will have one half interest in the marital union, which in turn owns the property. The parties to the marriage will jointly be entitled to any profits, rents, or liability from the property held as a tenancy by the entireties. Further, neither spouse can transfer their interest in the property without the other spouse joining or consenting to the transfer. If the property is held as tenancy by the entireties it may require additional legal action to sell the home in a divorce.
When a couple divorces, property held as tenancy by the entireties automatically converts into a tenancy in common. See Florida Statute 689.15. When property is held as tenants in common each owner has the right to sell, lease, or mortgage their interest in the property. Therefore, a Florida family law court is able to order a partition of the property as a means to sell the home in a divorce. If the couple is not divorced, the property will remain a tenancy by the entireties and not subject to a partition by the court.
How to Sell the Home in a Divorce with Partition
Filing for partition can be a means to sell the home in a divorce case. However, filing for partition can be tricky, you must file a separate action or specifically raise the partition in the divorce proceedings, a court cannot simply partition the property as an incident to the divorce case. See Valentine v. Valentine and Bergh v. Bergh. Regardless, whether the demand for partition is raised in the divorce proceedings or subsequent to the divorce the petition must be filed in the county where the property is located. See Harvey v. Mattes. Additionally, the demand for partition must include the following:
- Description of the property
- Names and addresses of the owners and other parties with an interest in property. For example, if the property is rented, the current tenants would have to be included.
- The share or interest each party has in the property
Tampa Divorce Law Firm
If you are contemplating filing for a divorce and are concerned about keeping your fair share of the assets call us today to speak with divorce lawyer in Tampa. Our divorce lawyers have years of experience helping people with their divorce and child custody disputes. Every divorce is different, and our vast experience allows us to cater our services to each client’s specific situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. We are available 24 hours a day, 7 days a week and offer a free initial consultation to prospective clients.