Sell a House During a Divorce — One Less Thing to Fight

Who owns the house, and who has to sign

Start with the deed, not the feelings. Most married couples in Florida hold the house as tenants by the entirety, which means both own all of it. Under Fla. Stat. § 689.15, that becomes a tenancy in common the day the final judgment is entered: each former spouse owns an undivided half, and either can sell or mortgage only their own half. Either way, a buyer's title company will require both signatures on the contract and the deed.

If only one spouse is on the title, the answer is usually the same. Article X, § 4(c) of the Florida Constitution says the owner of homestead real estate, joined by the spouse if married, may alienate the homestead by sale. A house the family lives in is homestead, so until the divorce is final the non-titled spouse must sign the deed too. After the final judgment there is no spouse to join, but the judgment itself usually says what happens to the house, and the title company will read it.

None of this is cause for panic. It means a sale during a divorce is a two-signature transaction, and the practical question is whether both of you are ready to sign.

Equitable distribution in plain terms

Florida is an equitable distribution state, not a community property state. Under Fla. Stat. § 61.075 the court first sorts assets into marital and nonmarital. A house bought during the marriage, by either spouse or both, is marital. A house one of you owned before the wedding, or inherited, can be nonmarital, although mortgage payments and improvements made with marital money can create a marital share. The cut-off date is the day the petition was filed, unless a valid separation agreement sets an earlier one.

The statute then says the court must begin with the premise that marital assets should be divided equally. It can depart from equal only for listed reasons, including each spouse's contributions, the length of the marriage, one spouse's interruption of a career, intentional waste of marital assets, and, relevant here, the desirability of keeping the marital home as a residence for a dependent child of the marriage. That last factor is why a judge sometimes grants one spouse exclusive use and possession of the house for a period rather than ordering it sold.

Section 61.075(5) also allows an interim partial distribution while the case is pending, on a sworn motion showing extraordinary circumstances such as avoiding foreclosure. If the mortgage is slipping, that is worth raising with your attorney. We are a buyer, not a law firm, and this is not legal advice; a Florida family law attorney is the person to ask about your case. Pinellas cases are heard in the Sixth Judicial Circuit's family division, Hillsborough's in the Thirteenth.

Selling before vs. after the final judgment

Before the judgment. Nothing in Florida law prevents a couple from selling the house while the case is pending, and many do, because it converts an argument into a number. Both spouses sign the contract and the deed. The net proceeds are held in the title company's escrow or an attorney's trust account, or split under a written agreement the attorneys draft, until the court approves the distribution. If a lis pendens has been recorded or the court has restricted the sale of assets, that has to be lifted first. Talk to your attorney before signing anything.

After the judgment. The final judgment or marital settlement agreement typically says one of three things: one spouse keeps the house and refinances by a deadline; the house is listed and sold with the proceeds split in stated shares; or one spouse has exclusive possession until a date or event and the house is sold then. If it says sell, the title company follows it. If one former spouse refuses to sign, the other can go back to the court that entered the judgment to enforce it, which is usually faster than a new lawsuit.

Timing matters for taxes too. The IRS lets a seller exclude up to $250,000 of gain on a main home, or $500,000 on a joint return, if the ownership and use tests are met. Which applies can depend on whether you close before or after the divorce is final. Ask a CPA before you pick a date.

When one spouse won't cooperate: partition

Sometimes one person simply will not sign, and the divorce case is stalled or over. Florida's answer is a partition action under Chapter 64. Under § 64.031 any one or more joint tenants or tenants in common can file it, in the county where the land sits. The court decides the parties' shares, and if the property cannot be divided without prejudice to the owners, which is always the case with a single house, § 64.071 lets the court order a public sale to the highest bidder and divide the proceeds by interest. Under § 64.081 each party pays a share of the costs, including attorney fees, in proportion to their interest, and the court can take them out of the sale proceeds.

Partition works, but it is slow, it adds a second set of legal fees on top of the divorce, and a court-ordered public sale rarely brings what a negotiated sale does. Most attorneys use the threat of partition to get the other side to the table. A written cash offer both spouses can see, with the math shown and a closing date on it, often does the same job for far less money.

Buyouts and the refinance reality

The most common plan is that one spouse keeps the house and buys the other out. That plan has two parts, and people focus on the easy one. The deed is easy: the leaving spouse signs a quitclaim or warranty deed to the staying spouse, and federal law (12 U.S.C. § 1701j-3(d)(7)) stops the lender from calling the loan due because of a transfer under a divorce decree or property settlement. The mortgage is the hard part. A deed does not take anyone off the note. Until the staying spouse refinances, the leaving spouse is still liable for the payment, it still shows on their credit, and a missed payment hurts both of them.

Refinancing on one income at today's rates, while also pulling out cash to pay the buyout, is where many of these plans fail. The staying spouse cannot qualify, or qualifies but cannot carry the payment, and the settlement agreement's deadline comes and goes. If that is where you are, selling the house and splitting the equity is often the honest answer, and it does not have to take months.

How a fast as-is sale takes the house out of the fight

Here is what we do. One walkthrough, 15 to 30 minutes; one spouse, a relative, or a lockbox is fine, and the other spouse does not have to be there. We send a written cash offer, typically within 24 hours, that both of you and both attorneys can read. The offer is the renovated value minus repairs, holding and resale costs, and our margin, and we show the math. If listing would net more, we say so; our comparison page lays out the trade-off. There are $0 in fees or commissions, we pay normal closing costs, and there is no financing contingency. No repairs, no clean-out, no months of showings, no open houses. If one of you has moved out and the house sits empty, that has its own costs.

At closing the mortgage, any HELOC, and any liens are paid from the price, and the title company splits the net exactly as your written agreement or the court order says, or holds it in escrow until the court rules. We can close in as little as 7 to 14 days when title is clean, or on a date that fits the court calendar. The house stops being the argument and becomes a number on a settlement sheet.

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We are a cash home buyer, not a law firm. This page is general information about Florida law and local process, not legal advice. For advice on your situation, talk to a Florida attorney — we work with several and are glad to make an introduction.