Under Florida divorce law, an “equitable distribution” of the marital assets and liabilities is required. This also includes real estate owned by the parties. The court will divide marital assets and liabilities 50/50 unless there are factors that would make an equal split inequitable. Usually, the first step is to determine if the real estate is marital or separate property. Only marital property/ debt is subject to equitable distribution by a court; separate property will remain the property of the spouse who owns it.
If a homeowner wants to sell the property as part of a divorce, they will need to include a partition claim in the divorce paperwork. If the partition is granted, the home may be either divided amongst the parties or sold with the proceeds being divided amongst the couple. Divorces involving real estate can be very complicated. If you need assistance contact a Tampa divorce law firm with experience in divorces involving real estate.
Will The Home Be Divided in a Divorce?
Generally, most income, assets, and debts obtained during the marriage are marital property. Property that was individually acquired prior to the marriage will likely be treated as separate property. Under Florida law, separate property is not subject to equitable distribution. However, separate property may be classified as marital property under various circumstances. For instance, if the deed has both parties as an owner it may be subject to equitable distribution. Comingling can also be grounds for separate property to be divided in a Florida divorce. See Farrior v. Farrior.
Comingling is an important consideration when filing for divorce in Florida. Generally, when equal access to the separate property is granted to the spouse it may become marital property. See Amato v. Amato. Determining if a separate property has been commingled with marital property is based on the specific facts of each case. Therefore, you should seek the counsel of an experienced Tampa divorce attorney for information about a specific case.
Division of Separate Property in a Divorce
Real estate that is determined to be separate property may still be subject to a partial distribution in a Florida divorce case. For instance, if marital funds were used to pay down the mortgage balance, the equity gained in the home may be subject to equitable distribution. See Mitchell v. Mitchell. Additionally, when marital funds or labor are used to improve the property, the increase in value due to such expenditures may be treated as marital property and subject to equitable distribution.
What Happens To Our Mortgage in a Florida Divorce?
Normally, if the home is not sold as part of the divorce, one spouse will be required to make the monthly mortgage payments. However, if the spouse required to make payments fails to pay, both parties may still be liable to the bank. If both parties signed the promissory note, the divorce settlement will not extinguish a spouse’s obligation to the bank. The bank is not a party to the divorce case and did not consent to any such agreement. Instead, the spouse will need to seek indemnification from the party required to pay under the divorce settlement agreement.
Alternatively, divorce lawyers will require the spouse who keeps the home to refinance the mortgage in just their name. Otherwise, if they remain on the mortgage they can still be liable to the bank even if they no longer own the property.
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 instance, in McDonald v. McDonald, the former wife sought to force a sale of the property due to the ex-husband’s failure to pay the mortgage, as required by the settlement agreement. The court denied the ex-wife’s request for a forced sale because the conditions triggering the right to force the sale were not properly drafted in the settlement agreement.
How To Sell a Jointly Owned Home in a Divorce
In order to force the sale of a home, a partition claim will need to be filed with the Court. You must file a separate case for the partition or specifically raise the partition in the divorce proceedings. A Florida judge 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 the 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.
Tenancy By The Entireties
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.
With a home held as tenancy by the entireties, each spouse will have a half interest in the marital union, which in turn owns the property. The parties to the marriage will jointly be entitled to any profits from the property. Further, the parties will be jointly liable for debt associated with property held as tenancy by the entireties. Neither spouse can transfer their interest in the property without the other spouse joining or consenting to the transfer. Additionally, a creditor of one spouse may not encumber property held as a tenancy by the entirety without both spouses being a party to the agreement.
If the title is held as tenants by the entireties it will be presumed to be a marital asset. This will be true even for a property that was acquired prior to the marriage. The party asserting a home held as tenancy by entireties is not a marital property will have the burden of overcoming the presumption that it is marital property. On the other hand, real estate acquired prior to the marriage that does not include the other spouse on the title will be presumed to be separate property, even if both spouses live in the property. See Abdnour v. Abdnour. In circumstances such as this, the spouse will typically need to show the home was purchased with joint funds to overcome the presumption of separate property.
How To Create a Tenancy By The Entireties
In order to hold property as a tenancy by the entireties, the following six characteristics must be present.
- Joint ownership and control.
- Identical interests in the property.
- The property interests originated in the same instrument/ transfer.
- The interests commenced simultaneously.
- The right of survivorship – death upon one spouse will automatically vest all of the property in the surviving spouse.
- The parties were married at the time they jointly acquired the property.
The tenancy by the entirety will remain in effect until the death of a party, divorce, or agreement terminating the tenancy. In the event of a divorce, the parties will retain the property as tenants in common with no right of survivorship, unless the divorce decree says otherwise.
Tenancy by the entireties is not reserved solely for real estate. For instance, personal property may also be held as tenancy by the entireties. Further, a tenancy by the entireties will be the presumed type of ownership for personal property transferred to the spouses. However, the transfer of an automobile to a married couple may not create the presumption of tenancy by the entireties. See Xayayong v. Sunny Gifts
Divorce Cases With Homestead Real Estate
Additional considerations should also be paid to property that is classified as homestead under the Florida Constitution. If the home is registered as homestead additional steps may be necessary to complete the process. Property which is properly designated as homestead is exempt from levy by creditors and may also benefit from reduced taxes. The purpose of homestead is to promote stability and welfare by allowing homeowners to continue to reside in their homes despite financial misfortune and the demands of creditors to levy the property. See Public Health Trust of Dade County v. Lopez.
Homestead property held by a married couple may not be sold or encumbered unless both spouses’ consent. For instance, a mortgage cannot be placed on the property unless both spouses agree to it. Further, a spouse cannot give the homestead property to a third party in a will unless the other spouse agrees to the terms.
Homestead can be claimed by any person, regardless if the person is single or married. However, two married persons may only claim a single homestead unless they otherwise qualify for homestead and can prove there are legitimate reasons for living in separate residences. See Law v. Law. To qualify for homestead protection, the resident must be the owner of the property and occupy the property with the intention to remain there. Additionally,
- The homestead must be established before the levy of a judgment creditor.
- The person claiming homestead must be a resident of Florida.
- The protection is limited to ½ acre of contiguous land within a municipality. Property located outside a municipality is protected up to 160 acres of contiguous land.
Consult a 5-Star Divorce Law Firm in Tampa
If you are contemplating filing for divorce and are concerned about keeping your fair share of the assets call us to speak with Tampa divorce attorney. Our divorce lawyers have years of experience in divorce cases with real estate. 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 or are engaged in fierce litigation, Florida Law Advisers can help. We are available 24 hours a day, 7 days a week and there is no cost for the initial consultation.