Every state has different laws related to divorce, personal property and real estate. While many rules are similar from one jurisdiction to the next, unique statutes make it difficult for many people to know how to handle large transactions or major changes to their families.
For example, most people only have a cursory understanding of real estate regulations and divorce statutes. What they know about family law and divorce may come from TV shows or books, rather than state-specific regulations. As such, people sometimes approach divorce and property division with unrealistic expectations. The real estate laws unique to Florida can potentially create complications during a divorce involving a marital home. How does state law affect the allocation of real property during a divorce?
The home belongs to the couple, not the spouses
Florida’s unique approach to marital real estate confuses many people. When spouses acquire real property jointly during a marriage, the interest in the property often involves them assuming tenancy by the entirety. In such scenarios, the property belongs to the married couple, not the individual spouses. These arrangements are usually the default unless spouses intentionally hold title in another manner.
That nuance may seem insignificant, but it is important during divorce proceedings. Neither spouse can simply sell the property without the consent of the other. Instead, they have to separate their ownership interests before they can legally do anything with the marital home.
Typically, this process requires a partition action filed in court. Partition actions allow judges to separate an ownership interest or allow for the sale of real property that belongs to more than one person.
Given that Florida has an equitable distribution rule, finding a fair way to divide home equity might require that one spouse refinance the property or that the spouses sell the home and divide the proceeds that they acquired through that transaction. Either solution may require legal documents.
Spouses can sometimes simplify the process of addressing real property by working to pursue an amicable, uncontested divorce. If they agree to refinance and transfer ownership to one spouse or to sell the property, addressing home equity can become less complicated.
Preparing for property division during a Florida divorce requires an understanding of the laws that may influence the process. Homeowners who learn about state laws may be in a better position to negotiate reasonable solutions for the marital home during a divorce.
