Dividing assets in a divorce can be difficult under the best of circumstances. When the parties jointly own real estate, the process can be even more challenging.

Florida has a system of complex laws governing real estate when spouses decide to end their marriage. A knowledgeable attorney could help you navigate real estate complications during a divorce in Miramar.

The Impact of Homestead Laws in a Miramar Divorce

Homestead property is defined as a married couple’s principal place of residence up to a certain acreage limit. Under state law, homestead property is a protected class of real estate that the spouses own as a married couple, rather than by each of them individually. One spouse cannot transfer a homestead without the consent of the other, even if that spouse’s name is not on the deed when that property is purchased during the marriage.

The state’s homestead laws benefit spouses because creditors cannot force the sale of a homestead to satisfy judgments. Additionally, the homestead is not subject to state taxes.  However, the law also imposes some substantial restrictions on divorcing couples. The following rules apply to the homestead in a divorce  case:

  • The interest in the home of the spouse who leaves is no longer protected by that spouse’s creditors
  • Only the spouse who remains in the home continues to have their interest protected from creditors
  • A divorce may result in the couple losing the  tenancy  by the entireties’ protection
  • Creditors may force the sale of the homestead to satisfy outstanding judgments

These potential complications should be carefully considered as the parties plan for divorce. A seasoned attorney could help a spouse navigate the complexities of homestead law during a divorce case.

Determining Whether Real Estate is Marital Property

State law requires equitable distribution of a couple’s marital assets and liabilities, including real property. A judge must first determine whether the real estate is marital versus one spouse’s separate property, as only marital assets can be divided in a divorce.

If the home belonged entirely to one party before marriage, they continue to own it after a divorce. However, if the house had a mortgage when the couple wed and they used marital funds to pay it thereafter, a judge may deem the equity in the home marital to the extent the marital funds helped pay down the mortgage.

Additionally, if one spouse added the other to the deed, the home may become a marital asset. Because real estate is often one of a couple’s most substantial investments, guidance from a capable divorce attorney can be helpful.

Options for Disposing of Real Estate

While a judge can order a marital home sold and award each spouse 50% of the proceeds, there are other options for managing property. One spouse could refinance the loan in their name solely to pay the other spouse their equitable interest in the home.  Once paid their equitable share of the value, the other spouse will execute a quit claim deed to the other to remove his/her name from the home.

If the couple has minor children and one spouse has been primarily caring for them in the home, a judge could permit that spouse to remain with the children in the home. Additionally, the other spouse could be ordered to continue to pay the mortgage. In that case, a judge may set a deadline for the home’s sale, like when a child turns 18, and determine how the proceeds will be split at that time.

Unique Complications in the Disposition of Real Property

After a divorce, the ex-spouses own any real estate they purchased together as tenants in common, meaning they are separate but undivided property owners. Under Florida Statute §64.071, one spouse can request to sell the property against the other party’s wishes by filing a partition lawsuit.

A judge may order an equal distribution of the real estate in a partition action and terminate the couple’s shared ownership. The court may also consider whether one party paid more to maintain the property. If so, it might award that spouse more of the sale proceeds.

Discuss Potential Real Estate Issues with a Skilled Divorce Lawyer in Miramar

A divorce involving a marital home presents unique challenges to equitable property distribution. You may benefit from discussing your case with a trusted attorney from our firm. Call us today to learn more about real estate complications during divorce in Miramar.