Selling a House During a Divorce in Florida: Equitable Distribution, Signatures, and Options

Divorce is hard enough without a house to sort out. The home is often the largest asset a couple owns, and it carries feelings too. This guide is general and neutral. It explains the Florida basics, who needs to sign, and the ways to sell, so you can have clearer talks with your attorney and the other spouse.

Start With Your Attorney

Before you call an agent or a buyer, talk with your family law attorney. There may be court orders about who can live in the home, who pays the mortgage, or whether either spouse can sell or borrow against it. A contract signed without both spouses, or against an order, can cause big problems later.

If you do not have an attorney, The Florida Bar Lawyer Referral Service can help you find one at 1-800-342-8011. It says you can get a 30 minute consultation for no more than $25.

How Florida Divides Property: The Basics

Florida uses a system called equitable distribution. Florida Statute 61.075 sets the rules.

• Equal is the starting point. The court must begin with the premise that the split should be equal, unless there is a reason for an unequal one. The statute lists factors the court can weigh.
• Marital vs nonmarital. Assets and debts acquired during the marriage are presumed to be marital. Property one spouse owned before the marriage is generally nonmarital. But an increase in value of a nonmarital asset because of either spouse’s efforts during the marriage can be marital.
• A cut-off date. The date used to identify marital assets is the earlier of a valid separation agreement or the filing of the divorce petition.

So even if the house was bought before the marriage, part of its value may still be shared. This is why you need an attorney to look at your facts.

Who Has to Sign?

This catches many people off guard.

• Both names on the deed. Both owners sign. Married couples in Florida often hold title as tenants by the entireties, which means both must join in any sale.
• One name on the deed, but it is the family home. Article X, Section 4(c) of the Florida Constitution says the owner of homestead real estate, joined by the spouse if married, may sell it. Florida attorneys explain this means the spouse who is not on title still must join the deed to give the buyer valid title.
• After the divorce is final. The judgment or settlement may give the house to one person or order a sale. The title company will read it to see who signs.

If one spouse lives far away, signing can often be done with a mobile notary or online notary. A licensed Florida title company can arrange it.

What About the Mortgage?

The mortgage is a contract with the lender. A divorce between the two of you does not, by itself, take anyone off the loan. Until the loan is paid off, refinanced, or the lender releases a borrower, both people who signed the note may still owe it. Late payments can affect both credit reports.

Federal law does give some help if one spouse keeps the home. The Garn-St Germain Act says a lender may not use a due-on-sale clause for a transfer where the spouse becomes an owner under a divorce decree, separation agreement, or property settlement. So the loan can stay in place. It just does not remove the other spouse’s liability.

If payments have fallen behind during the separation, read our guide on options when you are behind on your mortgage.

Taxes When You Sell

IRS Publication 523 explains the home sale exclusion. If you meet the ownership and use tests, generally 2 of the last 5 years, you may exclude up to $250,000 of gain, or $500,000 for a married couple filing jointly. The IRS has special rules for divorce:

• A transfer of your home, or your share, to a spouse or former spouse as part of a divorce generally has no gain or loss.
• If a home is transferred to you from a spouse or former spouse, you can count the time your spouse owned it.
• You can treat the home as your residence while a spouse or former spouse lives there under a divorce or separation instrument.

The timing of a sale can change your taxes. Ask a tax professional.

Your Options

Sell now and split the proceeds

This gives both people a clean break. The title company pays the mortgage and costs, then disburses or holds the rest under your written agreement or court order. A traditional listing can bring the highest price, but it needs both spouses to agree on repairs, showings, price, and offers. See cash offer vs listing vs selling on terms.

Sell as is for cash

Some couples choose a simpler sale, even if the price is lower. It can help when the home needs work, when neither spouse wants to manage repairs, or when fewer steps mean fewer disagreements. Compare the net carefully.

One spouse keeps the house

One spouse may buy out the other’s share, often by refinancing. If the loan rate is low, an assumption or keeping the loan in place may be worth discussing with the lender and your attorneys.

Sell on terms

If there is little equity, a subject-to sale may let both of you move on while the buyer takes over payments. The loan stays in your names, so both attorneys should review it. A 1% listing through our licensed partner brokerage can help when the home could sell for more on the open market and both spouses agree on the price and timing.

Tips for a Smoother Sale

• Agree on one way to share information, like email that copies both spouses or both attorneys.
• Send every offer to both owners.
• Put agreements about price, repairs, and moving dates in writing.
• Keep the home insured and the mortgage paid while it sells.
• If you have safety concerns, tell your attorney so meetings and showings can be planned around them.

How HOMKEYS Works With Divorcing Sellers

HOMKEYS LLC buys homes across Florida. We stay neutral, communicate with both owners, and work with both attorneys when asked. We can show a cash offer and, when it fits, a subject-to purchase, seller financing, or a 1% listing through our licensed partner brokerage. Every closing goes through a licensed Florida title company, which can hold the proceeds under your agreement or order. We do not give legal or tax advice, and we cannot promise a price or closing date before we see the home.

Subject to qualification, property inspection, and transaction terms.

We buy in many areas, including Wesley Chapel, Kissimmee, Fort Myers, and Port Charlotte. Share a few details about the property or call (305) 914-4191.

Frequently Asked Questions

Not legal advice. This guide is general information about Florida home sales. Laws change and every situation is different. Talk with a Florida attorney, tax professional, or insurance professional about your own case before you sign anything.

⌂ Equal Housing Opportunity. HOMKEYS LLC does not give legal or tax advice. Talk with a Florida real estate attorney or tax professional about your situation.