How Do I Sell My Home During a Divorce in Florida?

Selling your home during a divorce can be one of the most emotionally and financially complex parts of the process. In Florida, the decision to sell a marital home involves careful application of property division laws, judicial discretion, and sometimes court orders. Whether you’re cooperating with your spouse or facing resistance, understanding how Florida law treats marital homes during divorce will help you make smart, legally sound decisions.

This article explains the full legal process involved in selling your home during a divorce in Florida, referencing the most relevant Florida Statutes that control this issue.

What Florida Law Says About Property Division

Florida is an equitable distribution state. This means that the court will divide marital property fairly (not necessarily in an equal manner) during a divorce. The primary statute governing property division is Florida Statutes § 61.075.

Under this law, the court first identifies whether property is “marital” or “nonmarital.” Then, it distributes the marital property equitably, considering factors like each spouse’s economic circumstances, contributions to the marriage, and child custody arrangements.

The court presumes that an equal distribution is fair unless there is a justification for unequal division, such as one party’s intentional waste or dissipation of marital assets.

Is the Home Marital or Nonmarital?

Before you can sell the home, you need to determine whether it qualifies as marital property under Florida Statutes § 61.075(6).

Marital property generally includes real estate purchased during the marriage using marital funds or property that was jointly titled. Even if one spouse owned the home before marriage, it may partially become marital property if marital funds were used to pay the mortgage or make improvements. Appreciation in value during the marriage can also become a marital asset if it results from either spouse’s contributions.

If the home is nonmarital, the spouse who owns it keeps it. If it’s marital, it becomes subject to equitable distribution.

Who Decides Whether the Home Is Sold?

If you and your spouse agree to sell the home, you can move forward without court intervention. If you disagree, the court has the authority to order the sale as part of the final judgment under § 61.075(1), Florida Statutes, which empowers the court to equitably divide assets, including through sale of jointly owned real property.

Additionally, if one spouse refuses to cooperate in the listing, showing, or closing process, the court can authorize a partition. Although typically governed by Florida Statutes Chapter 64, partition actions are often avoided during divorce because § 61.075 gives the family court authority to resolve all property issues within the divorce proceeding itself.

In rare cases, if the divorce is ongoing but the home needs to be sold immediately, a party may request an interlocutory order (temporary relief) under Florida Statutes § 61.11, which allows the court to decide temporary issues before final judgment.

Selling the Home When Children Are Involved

If minor children are involved, and the marital home is used as their primary residence, the court may defer the sale temporarily to allow the custodial parent and children to remain in the home. This is permitted under Florida Statutes § 61.075(1)(h), which allows the court to consider the desirability of retaining the marital home for the benefit of the children.

In such cases, the home may be awarded exclusively to one parent until a specific future date, such as when the youngest child turns 18 or graduates high school. At that point, the house is typically sold and the proceeds divided.

What Happens If One Spouse Won’t Cooperate?

When a spouse refuses to agree to the sale or fails to sign documents, the court can step in. If both parties are on the deed and mortgage, the court may appoint a special magistrate or third party to sign listing agreements, closing documents, or other paperwork.

A spouse acting in bad faith—by refusing showings, hiding offers, or damaging the property—can be penalized by the court. In extreme cases, the court can award a greater share of the proceeds to the cooperating spouse. The harmed spouse may also seek reimbursement of legal costs under Florida Statutes § 61.16, which authorizes fee-shifting when one party causes unnecessary litigation.

Refinancing Instead of Selling

Sometimes, one spouse wants to keep the home and “buy out” the other’s interest. This is permitted as long as that spouse can refinance the mortgage and remove the other spouse’s name. If approved by the court, the buying spouse must pay the other an agreed-upon or court-ordered share of the equity.

Under Florida Statutes § 61.075(1), the court can consider “desirability of retaining any asset” when determining how to divide it. This allows the judge to approve one spouse keeping the home while awarding other assets to the other spouse to balance things out.

Managing the Sale Proceeds

Once the home is sold, proceeds are used to pay off existing mortgages, taxes, realtor commissions, and closing costs. Whatever remains—called net proceeds—is divided according to the court’s order.

If a final judgment has not yet been issued, proceeds are sometimes placed in an escrow account until the court rules on distribution. This helps prevent premature or unfair withdrawals. If you and your spouse reach a settlement, it should clearly state how the proceeds will be divided and when.

Tax Considerations for Florida Home Sales

Although Florida has no state income tax, you may still be subject to federal taxes when selling your home. The IRS permits an exclusion of up to $250,000 for single filers or $500,000 for married couples filing jointly on capital gains, but only if you’ve lived in the home for at least two of the last five years before the sale.

If the home is sold after divorce and you no longer meet the joint ownership or use test, your exclusion may be reduced. Speak with a tax advisor for guidance on how the federal rules apply in your situation. Florida law does not alter federal tax treatment.

Timing of the Sale

You can sell the home before the divorce is filed, during the case, or after the final judgment. Each option has different consequences.

Selling before filing allows you to divide proceeds privately, but you must document the agreement carefully to avoid future disputes. Selling during the divorce brings court oversight, which can help resolve disputes and protect both parties. Selling after the divorce means following the exact terms of the final judgment.

Bradenton, Lakewood Ranch, Sarasota, and Venice, Florida Divorce Lawyer

Handling the sale of your home during divorce in Bradenton, Lakewood Ranch, Sarasota, and Venice, Florida involves many legal steps, and Florida’s equitable distribution rules are both detailed and strict. Knowing your rights under Florida law ensures that you’re well informed and prepared. Whether you’re cooperating with your spouse or facing challenges, proper planning and legal understanding can help you protect your financial future.

To speak with a top-rated Sarasota, Bradenton, Lakewood Ranch, and Venice, Florida divorce attorney about your rights and options when selling your home during a divorce, contact the Law Offices of Matthew Z. Martell, P.A. divorce lawyers by calling (941) 556-7020 or contacting us online for a free initial consultation.