Under Florida's equitable distribution law, the marital home is divided fairly between spouses, starting from a presumption of 50/50 division unless specific factors justify an unequal split. Fla. Stat. § 61.075 governs how Florida courts divide the family home, considering factors like contributions to the marriage, economic circumstances, and whether minor children would benefit from remaining in the residence. The spouse who keeps the house typically must refinance the mortgage within 60-180 days and pay the other spouse their share of the equity.
| Key Facts | Florida Law |
|---|---|
| Filing Fee | $408-$418 base (as of March 2026) |
| Waiting Period | 20 days minimum |
| Residency Requirement | 6 months for at least one spouse |
| Grounds | No-fault (irretrievably broken) |
| Property Division | Equitable distribution (fair, not necessarily equal) |
| Governing Statute | Fla. Stat. § 61.075 |
How Florida Courts Decide Who Gets the House in a Divorce
Florida courts begin with a presumption that marital property, including the family home, should be divided equally (50/50) between spouses. Under Fla. Stat. § 61.075(1), the court must start from this equal distribution premise but may deviate when specific factors justify an unequal split. In practice, approximately 70-80% of Florida divorces involving real estate result in either a negotiated buyout or a sale of the property, with courts ordering forced sales in only 15-20% of contested cases.
The court follows a three-step process when dividing the marital home:
- Classification: Determine whether the home is marital property, non-marital property, or a mix of both
- Valuation: Establish the current fair market value and calculate equity (value minus mortgage balance)
- Distribution: Decide how to divide the equity between spouses
For a home purchased during the marriage with joint funds, classification is straightforward: the entire equity is marital property subject to division. However, when one spouse owned the home before marriage or received it as an inheritance, only the portion of appreciation and mortgage paydown during the marriage may be marital property.
Marital Property vs. Non-Marital Property: Understanding the Classification
The family home purchased during marriage using marital funds is presumed marital property regardless of whose name appears on the title or mortgage. Under Florida law, all assets acquired during the marriage are presumed marital unless proven otherwise. This presumption applies even when only one spouse signed the mortgage documents or made the monthly payments from their individual paycheck, because income earned during marriage is typically marital property.
Non-marital property includes homes owned by one spouse before the marriage, inherited homes, and homes received as a gift to one spouse alone. However, these classifications can change through commingling. If a spouse owned a home worth $200,000 before marriage and paid down $50,000 of the mortgage using joint funds during a 10-year marriage, the $50,000 principal reduction plus any appreciation attributable to marital contributions becomes marital property subject to division.
The 2024 Florida Legislature amended Fla. Stat. § 61.075 to clarify that interspousal gifts of real property require a written instrument signed by the transferring spouse in compliance with Fla. Stat. § 689.01. This change, effective July 1, 2024, means verbal agreements to make a spouse a co-owner of separate property no longer create marital rights to that property.
The 10 Statutory Factors Florida Courts Consider
Florida courts weigh ten specific factors when deciding who gets the house in a divorce, as enumerated in Fla. Stat. § 61.075(1). These factors determine whether the court will deviate from the 50/50 presumption and, if so, by how much. Courts consider each factor individually and then balance them collectively to reach an equitable result.
| Factor | How It Applies to the House |
|---|---|
| Contribution to the marriage | Who paid the mortgage, property taxes, maintenance |
| Economic circumstances | Each spouse's ability to maintain the home post-divorce |
| Duration of marriage | Longer marriages favor equal splits; shorter marriages may favor the titleholder |
| Career sacrifices | Spouse who stayed home may receive larger property share |
| Contribution to other spouse's career | Supporting a spouse through education increases property claim |
| Desirability of retaining asset | Keeping a business intact; keeping home for children |
| Intentional dissipation | Wasting marital assets reduces that spouse's share |
| Homemaker contribution | Homemaking contributions valued equally to financial contributions |
| Each spouse's property | What non-marital assets each spouse retains |
| Any other relevant factors | Catch-all for unique circumstances |
When Minor Children Affect Who Keeps the House
Florida courts prioritize children's stability when deciding who gets the marital home. Under Fla. Stat. § 61.075(1)(h), the court must consider the desirability of retaining the marital home as a residence for any dependent child when three conditions are met: it would be equitable, it is in the child's best interest, and it is financially feasible. Florida case law establishes that the primary residential parent typically receives exclusive use and possession of the marital home until the youngest child reaches 18, is emancipated, or the custodial parent remarries.
Courts recognize that children who have lived in a particular home for most of their childhood develop emotional connections to their school, neighborhood, and friends. Disrupting these relationships during an already difficult transition can harm children's well-being. For this reason, the parent with majority timesharing frequently receives exclusive possession of the home, even when this means delaying the other spouse's receipt of their equity share.
Exclusive use and possession does not mean ownership. The non-custodial parent retains their ownership interest and will receive their equity share when the home is eventually sold or refinanced. Courts typically set a triggering event for the sale, such as the youngest child's graduation from high school, the custodial parent's remarriage, or the custodial parent's decision to vacate the property.
Three Options for Handling the Marital Home
Florida divorcing couples have three primary options for resolving ownership of the marital home: one spouse buys out the other, both spouses sell the home and split proceeds, or one spouse receives exclusive use while the other retains equity rights. Each option has distinct financial and practical implications that depend on factors like available cash, mortgage qualification, and housing market conditions.
Option 1: Spouse Buyout
The buyout option allows one spouse to keep the family home by paying the other spouse their share of the equity. If a home is worth $500,000 with a $300,000 mortgage balance, the equity is $200,000, and each spouse's share under a 50/50 division is $100,000. The buying spouse must pay the selling spouse $100,000 through cash, retirement account offset, assumption of debt, or mortgage refinance.
Most buyouts require refinancing because both spouses are typically on the original mortgage. A quitclaim deed removes one spouse from the title but does not remove them from mortgage liability. The remaining spouse must qualify for a new mortgage based solely on their income, credit score, and debt-to-income ratio. With 2026 mortgage rates averaging 6.5-7.5%, the buying spouse needs sufficient income to qualify for the full mortgage amount plus their ongoing obligations.
Most Florida settlement agreements require refinancing within 60-180 days of the final judgment. If the buying spouse cannot qualify for refinancing within this timeframe, the home may need to be sold.
Option 2: Sell the Home and Split Proceeds
Selling the marital home and dividing the net proceeds is often the cleanest solution when neither spouse can afford the buyout or when both spouses prefer to make a fresh start. After deducting the mortgage balance, real estate agent commissions (typically 5-6% of sale price), closing costs (2-3%), and any outstanding liens, the remaining proceeds are divided according to the equitable distribution agreement or court order.
For example, a home selling for $450,000 with a $250,000 mortgage, $27,000 in agent commissions (6%), and $13,500 in closing costs (3%) yields net proceeds of $159,500. Under a 50/50 split, each spouse receives $79,750. Under a 60/40 split favoring one spouse, that spouse receives $95,700 while the other receives $63,800.
Courts can order the sale of the marital home when the parties cannot agree, but this typically occurs through a partition action filed as a separate proceeding after the divorce is finalized. Once tenants by the entireties ownership converts to tenants in common through the divorce judgment, either former spouse may petition for partition under Florida Statutes Chapter 64.
Option 3: Exclusive Use and Possession (Deferred Sale)
Deferred sale arrangements allow one spouse to remain in the home temporarily while preserving the other spouse's equity interest. This option is most common when minor children are involved and the court wants to minimize disruption to their living situation. The occupying spouse typically pays the mortgage, property taxes, insurance, and maintenance while the equity interest of both spouses continues to grow (or shrink) with the property's value.
Under a deferred sale, triggering events for the eventual sale or refinance typically include: the youngest child reaching age 18 or graduating high school, the occupying spouse remarrying or cohabitating with a new partner, the occupying spouse failing to maintain the property or pay the mortgage, or a specified number of years passing (commonly 3-5 years). When the triggering event occurs, the home is either sold with proceeds divided, or the occupying spouse must refinance and buy out the other spouse's interest at the then-current fair market value.
How Home Equity is Calculated in Florida Divorce
Florida courts calculate home equity by subtracting the mortgage balance and other liens from the current fair market value of the property. For a home appraised at $425,000 with a $275,000 mortgage balance and a $15,000 home equity line of credit, the equity is $135,000 ($425,000 minus $275,000 minus $15,000). This equity amount is then divided according to equitable distribution principles.
Fair market value is typically established through a professional appraisal, which costs $300-$600 for a single-family home in Florida. Both spouses may hire their own appraisers, and if values differ significantly, the court may appoint a third appraiser or average the two values. Alternatively, spouses can agree on a value based on comparable sales in the neighborhood or a broker price opinion.
The valuation date matters significantly in fluctuating markets. Florida courts generally use either the date of filing, the date of separation, or the date of trial as the valuation date. In a market where home values increased 15% over 18 months of litigation, the chosen valuation date could mean a difference of tens of thousands of dollars in each spouse's share.
Mixed Property: When Non-Marital Homes Become Partially Marital
When one spouse owned the home before marriage or received it as an inheritance, the non-marital character of that original ownership does not automatically extend to the entire property. Florida recognizes that marital contributions to a non-marital home create a marital interest. The marital interest includes mortgage principal paid with marital funds, appreciation attributable to marital contributions (active appreciation), and a portion of passive appreciation in some circumstances.
Consider this example: A husband owned a home worth $300,000 with a $200,000 mortgage when he married. During a 10-year marriage, the couple paid $80,000 toward the mortgage principal using marital income. The home is now worth $450,000 with a $120,000 mortgage balance. The husband's non-marital interest is the $100,000 equity he had at marriage. The marital interest includes the $80,000 principal paydown plus potentially a portion of the $150,000 appreciation. Under various calculation methods, the wife's share could range from $40,000 to $75,000 or more.
The Refinance Challenge: Qualifying on One Income
The spouse who wants to keep the marital home faces a significant hurdle: qualifying for a new mortgage based on their individual income alone. Lenders evaluate debt-to-income ratios, requiring that housing costs (principal, interest, taxes, insurance) not exceed approximately 28% of gross monthly income, and total debt payments not exceed 36-43% of gross income. For a $350,000 mortgage at 7% interest, monthly principal and interest alone is approximately $2,329, requiring a gross monthly income of at least $8,318 ($99,816 annually) to meet the 28% threshold.
Alimony and child support can count as qualifying income if the recipient can document a consistent payment history (typically 6 months minimum) and the payments will continue for at least 3 years after the mortgage closes. However, this creates a timing conflict: settlement agreements often require refinancing within 90-180 days, but lenders want 6 months of documented support payments. Careful coordination between family law and mortgage professionals is essential.
Loan assumption offers an alternative to refinancing when the existing mortgage is FHA or VA. Assumption preserves the original interest rate, which may be significantly lower than current rates. For couples who purchased their home in 2020-2021 with rates around 3%, assumption versus refinancing at 7% could mean a difference of $800+ per month in payments on a $400,000 loan.
Partition Actions: When the Court Forces a Sale
A partition action is a legal mechanism that allows any co-owner to force the sale or division of jointly owned property when the owners cannot agree. Under Florida Statutes Chapter 64, either former spouse can file a partition action after the divorce judgment converts their ownership from tenants by the entireties to tenants in common. The court will order either a physical division of the property (rare for residential homes) or a sale with proceeds distributed to the owners.
Partition actions are filed in the county where the property is located, which may be different from the county where the divorce was filed. This is a separate civil case, not part of the family law proceedings. The partition sale is typically conducted as a judicial sale supervised by the court, which often yields lower prices than private market sales because of limited marketing and buyer pools.
To avoid partition, divorcing couples should include specific, enforceable terms in their settlement agreement addressing: who will list the property for sale (if selling), the listing price and adjustment timeline, how offers will be evaluated, who pays carrying costs during the sale process, and consequences for non-cooperation. Vague terms like "the parties will cooperate in selling the home" invite post-divorce litigation.
Protecting Your Interest During the Divorce Process
Both spouses have equal rights to occupy the marital home during a Florida divorce until the court orders otherwise or the parties agree to a different arrangement. Even when one spouse voluntarily moves out to reduce conflict, that spouse retains their property rights and can return to the home unless a court order restricts their access. Voluntary departure does not constitute abandonment of property rights under Florida law.
Protective measures during the divorce process include documenting the home's condition with photographs and video, maintaining records of all mortgage payments and home-related expenses, requesting a standing order (automatic in Florida divorces) preventing either party from selling, transferring, or encumbering marital assets, and considering a lis pendens filing if there is concern about improper transfers. These steps preserve evidence and protect both spouses' interests while the case proceeds.
Florida Statute Section 689.11 requires both spouses to sign any sale or refinance of homestead property, even when only one spouse's name is on the title. This protection prevents unilateral action by one spouse but also means that a non-cooperative spouse can delay or obstruct a legitimate sale. Court orders may be necessary to compel cooperation or appoint a special master to execute documents on behalf of a non-compliant party.
Filing Fees and Court Costs for Florida Divorce
The base filing fee for divorce in Florida is $408 as of March 2026, with an additional $10 summons issuance fee bringing the total to $418 at initial filing. This fee is set by Fla. Stat. § 28.241 and applies uniformly across all 67 Florida counties, though some counties add local surcharges of $5-$55.
Additional costs beyond the filing fee include process server fees ($40-$75), certified copy fees ($2 per page), motion filing fees ($50-$100 each), mediation fees ($100-$400 for court-annexed mediation), and appraisal costs ($300-$600 for residential property). If the case involves complex property issues or custody disputes requiring a guardian ad litem, expect fees of $1,500-$5,000. Total costs for an uncontested divorce with attorney representation typically range from $2,500-$5,000, while contested cases average $11,000-$14,000 and can exceed $25,000 for complex litigation.
Fee waivers are available for low-income filers whose household income falls below 200% of federal poverty guidelines (approximately $31,200 for an individual or $42,400 for a couple in 2025). Form 12.980(b) is used to request waiver of filing fees and costs.
H2: Frequently Asked Questions About the Marital Home in Florida Divorce
Can my spouse force me to sell the house in a Florida divorce?
Yes, but only through specific legal processes. During the marriage, Florida's tenancy by the entireties protection prevents either spouse from unilaterally selling or mortgaging the home. After the divorce is finalized, if you cannot agree on disposition of the property, your former spouse can file a partition action under Florida Statutes Chapter 64 to compel a court-ordered sale. However, this requires a separate lawsuit and typically results in a judicial sale that yields lower proceeds than a private market transaction.
How is home equity calculated when one spouse owned the house before marriage?
The non-marital equity equals the home's value minus the mortgage balance at the time of marriage. The marital interest includes mortgage principal paid with marital funds during the marriage plus appreciation attributable to those marital contributions. For example, if you owned a $300,000 home with $100,000 equity at marriage, and the couple paid $50,000 toward principal during the marriage, the marital interest is at least $50,000 (and potentially more if active improvements increased the home's value).
Does the primary parent automatically get to keep the house in Florida?
Not automatically, but Florida courts strongly favor allowing the custodial parent to remain in the marital home with minor children. Under Fla. Stat. § 61.075(1)(h), courts must consider whether retaining the home benefits the children and is financially feasible. Case law establishes a general rule that the primary residential parent should receive exclusive use until the youngest child reaches majority, unless special circumstances exist.
What happens if I cannot qualify to refinance the mortgage?
If you cannot qualify for refinancing within the timeframe specified in your settlement agreement (typically 60-180 days), you have several options: negotiate an extension with your former spouse, explore loan assumption if you have an FHA or VA mortgage, trade the home for other assets of equivalent value, or agree to sell the home and divide proceeds. Courts may modify the timeline if you demonstrate good faith efforts to refinance and temporary inability to qualify.
Can I be held responsible for the mortgage after my name is removed from the title?
Yes. A quitclaim deed removes your name from the property title but does not remove you from the mortgage note. You remain legally liable for the mortgage debt until it is refinanced or paid off. If your former spouse stops making payments, the lender can pursue you for the balance and report missed payments on your credit. The only way to eliminate mortgage liability is refinancing, loan assumption, or paying off the loan.
What if my spouse refuses to cooperate in selling the marital home?
If your divorce judgment or settlement agreement requires the sale of the home and your former spouse refuses to cooperate, you can file a motion for contempt in the family court that issued the divorce judgment. The court can hold the non-compliant spouse in contempt, impose sanctions, appoint a special master to sign documents on the non-compliant spouse's behalf, or order the property sold at judicial sale. Alternatively, you can file a partition action in the county where the property is located.
How does domestic violence affect who gets the marital home?
Florida courts can issue exclusive possession orders removing an abusive spouse from the marital home, both through domestic violence injunctions and through the divorce proceedings. Under Fla. Stat. § 61.075, the court may consider domestic violence as a relevant factor in equitable distribution. Additionally, the intentional dissipation, waste, or destruction of marital assets (which can include damaging the home) may result in an unequal distribution favoring the victim spouse.
What is the difference between exclusive use and ownership of the marital home?
Exclusive use means one spouse has the legal right to occupy the home while the other spouse is excluded from living there. Ownership refers to the legal title and equity interest in the property. A spouse can have exclusive use without owning the home outright. Under a deferred sale arrangement, one spouse may live in the home (exclusive use) while both spouses retain their equity interests (ownership), with the property to be sold or refinanced at a future triggering event.
Can we agree to delay selling the house for several years after the divorce?
Yes. Florida courts permit deferred sale arrangements where both spouses retain ownership interests while one spouse has exclusive occupancy. The agreement should specify: who pays the mortgage and other carrying costs, how appreciation or depreciation is shared, what triggering events will require sale or refinance (such as children reaching adulthood, remarriage, or a specified date), and how disputes will be resolved. Such arrangements require careful tax planning since IRS rules on principal residence exclusions have specific occupancy requirements.
What role does mediation play in deciding who gets the house?
Florida requires mediation in most contested divorce cases before trial. During mediation, a neutral third party helps spouses negotiate all issues including property division. Approximately 70-80% of Florida divorces settle through mediation or negotiation without trial. Mediators cannot impose solutions but can help creative problem-solving, such as structured buyouts, offsetting the home equity against retirement accounts, or delayed sale arrangements that meet both spouses' needs.
Next Steps for Protecting Your Interest in the Marital Home
If you are facing divorce in Florida and the marital home is a significant asset, gather documentation now: mortgage statements showing current balance, recent property tax bills, homeowners insurance declarations, records of major improvements made during the marriage, and any evidence of separate property contributions (such as inheritance used for down payment or improvements). An experienced Florida divorce attorney can help you understand your rights under Fla. Stat. § 61.075 and develop a strategy for achieving your goals regarding the family home.
Verified Florida Resources: