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Pazos Law Group Prenups · Divorce · Family Law

What Happens to the House in a Florida Divorce?

By Nadia Pazos, Family Law Attorney, Pazos Law Group ·  ·  ← All blog posts

Quick Answer

Governing authority: Fla. Stat. § 61.075(1) (the equal-distribution starting premise); Fla. Stat. § 61.075(7) (the classification cut-off date).

Is the marital home automatically split 50/50 in a Florida divorce?

Florida is an equitable distribution state, not a community property state. Courts begin with the presumption of an equal division of marital property — including the marital home — but may order an unequal distribution based on statutory factors under Fla. Stat. § 61.075.

Which Florida Statutes Govern Equitable Distribution? (§ 61.075, as amended by ch. 2024-237)

Property division runs through Fla. Stat. § 61.075(1), which requires the court to begin from an equal split. The 2024 amendment (ch. 2024-237, effective 1 July 2024) added the closely-held-business valuation rules. Every proposition below is tied to the pinpoint subsection that supports it. Links go to the official text published by the Florida Legislature.

  • § 61.075(1) — requires the court to set apart each spouse’s nonmarital property and to begin distribution from the premise that it should be equal, absent justification for an unequal split.
  • § 61.075(1)(a)–(j) — lists the factors that can justify an unequal distribution, including contributions, economic circumstances, duration, career interruption, and the desirability of keeping a business intact.
  • § 61.075(1)(i) — makes intentional dissipation, waste, depletion, or destruction of marital assets a factor when it occurs after filing or within 2 years before filing.
  • § 61.075(3) — requires specific written findings identifying nonmarital assets, valuing significant marital assets, and assigning liabilities in any contested case without a stipulation.
  • § 61.075(5) — permits an interim partial distribution on a sworn motion showing extraordinary circumstances.
  • § 61.075(6)(a)1.b — makes the enhancement in value and appreciation of a nonmarital asset marital when it results from either party’s marital effort or the expenditure of marital funds.
  • § 61.075(6)(a)1.c — supplies the coverture-fraction formula for the marital share of passive appreciation where marital funds paid down a mortgage on nonmarital real property.
  • § 61.075(6)(a)1.e — makes all vested and nonvested retirement, pension, profit-sharing, annuity, deferred compensation, and insurance benefits accrued during the marriage marital assets.
  • § 61.075(6)(a)1.f — sets fair market value as the standard of value for a closely held business and makes enterprise goodwill a marital asset the court must value.
  • § 61.075(6)(a)2. — presumes real property held as tenants by the entireties is marital, whenever acquired.
  • § 61.075(6)(b) — defines nonmarital assets: premarital property, noninterspousal gifts and inheritances, income from nonmarital assets not treated as marital, and assets excluded by valid written agreement.
  • § 61.075(7) — fixes the cut-off date for classification as the earlier of a valid separation agreement or the filing of the petition, while leaving the valuation date to the judge.
  • § 61.075(8) — presumes assets acquired and liabilities incurred after the date of marriage are marital, rebuttable by a showing to the contrary.
  • § 61.075(9) — permits equitable distribution without regard to alimony, with alimony considered afterward.
  • § 61.075(11) — abolishes special equity, which must now be pleaded as unequal distribution or as enhancement in value.
  • § 61.076 — governs the distribution of retirement, pension, profit-sharing, annuity, and deferred compensation plans.
  • § 61.16 — governs attorney’s and expert fee awards, including forensic accounting costs.
  • § 61.08(1)(a) — governs the alimony forms considered after the estate is divided.
  • Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991) — the Florida Supreme Court decision on enterprise goodwill in a professional practice.
  • Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010) — the Florida Supreme Court decision on the marital share of passive appreciation, now codified at § 61.075(6)(a)1.c.
  • § 61.021 — requires 6 months of Florida residency before the petition that fixes the classification cut-off date.
  • § 61.052 — supplies the ground — an irretrievably broken marriage — for the dissolution in which the estate is divided.
  • § 61.19 — bars entry of the final judgment dividing the estate until at least 20 days after the petition is filed, absent a showing that the delay would cause injustice.
  • § 61.071 — authorizes temporary support and suit money while valuation and financial discovery proceed.
  • § 61.30(2) — supplies the net income definitions applied when a divided asset produces income.
  • § 61.14 — equitable distribution is final once entered, while support obligations remain modifiable under this section.
  • § 44.102(2)(c) — refers parenting disputes to family mediation, the forum in which most property settlements are also negotiated.

Source: Florida Legislature, 2025 Florida Statutes. Fla. Stat. ch. 61 Fla. Stat. ch. 61

“in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” — Fla. Stat. § 61.075(1)
“If there is goodwill separate and distinct from the continued presence and reputation of the owner spouse, it is considered enterprise goodwill, which is a marital asset that must be valued by the court.” — Fla. Stat. § 61.075(6)(a)1.f
“The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.” — Fla. Stat. § 61.075(7)
“The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” — Fla. Stat. § 61.075(1)(i)

Answers to the Questions the Statute Actually Decides

Does Florida split everything 50/50 under § 61.075(1)?

Not automatically. The statute requires the court to begin from the premise of an equal distribution, then permits an unequal split where the factors in paragraphs (a) through (j) justify it. Nonmarital property is set apart first and is not divided at all.

What date fixes whether an asset is marital under § 61.075(7)?

Classification is fixed at the earliest of a valid separation agreement, a date the agreement expressly sets, or the filing of the petition. Valuation is a separate question — the same subsection lets the judge pick whatever valuation date is just and equitable, and different assets may be valued on different dates.

Is business goodwill divisible in a Florida divorce?

Enterprise goodwill is. § 61.075(6)(a)1.f, added by ch. 2024-237 effective 1 July 2024, makes goodwill that exists separate and distinct from the owner spouse’s continued presence and reputation a marital asset the court must value. The statute uses the term “enterprise goodwill”; the phrase “personal goodwill” appears nowhere in it.

What happens if a spouse wastes or hides marital assets?

§ 61.075(1)(i) makes intentional dissipation, waste, depletion, or destruction of marital assets a statutory factor supporting an unequal distribution, and it reaches conduct within the 2 years before the petition was filed, not just conduct after filing.

Statutory authority checked against the 2025 Florida Statutes on 6 August 2026.

The marital home is often the most emotional asset in a divorce — and one of the most legally and financially complex. Florida’s equitable distribution rules, homestead protections, and tax treatment all shape what happens to it.

For most divorcing couples, the home is the largest asset they own together. Decisions about the marital home cannot be made in isolation — they intersect with mortgage liability, tax basis, homestead protections, custody arrangements, and the equitable distribution of the rest of the marital estate.

Is the House Marital or Non-Marital?

The first legal question is whether the home is marital property — subject to equitable distribution — or non-marital property, which generally is not divided.

Under Fla. Stat. § 61.075:

  • A home purchased during the marriage with marital funds is marital property, regardless of whose name is on the title.
  • A home owned by one spouse before the marriage generally remains that spouse’s non-marital property — but the appreciation during the marriage may be marital, especially if marital funds were used for the mortgage, taxes, insurance, or improvements.
  • A home received as a gift or inheritance by one spouse is generally non-marital, with the same caveat about marital appreciation.
  • A home titled jointly is presumed to be marital regardless of where the down payment came from. Florida courts have held that titling property in joint names creates a presumption of gift to the marriage.

The line between marital and non-marital is one of the most disputed issues in Florida divorces involving real estate, particularly when one spouse contributed pre-marital funds or used non-marital assets to maintain the property.

Three Options for the Marital Home

Once a court (or the parties) determines that the home is marital, there are essentially three options:

1. Sell the Home and Divide the Proceeds

Selling is the cleanest option financially. Both spouses agree to list the home, and the net proceeds — after mortgage payoff, closing costs, and any liens — are divided according to the parties’ agreement or the court’s equitable distribution order. Selling eliminates ongoing joint financial entanglement and ensures both parties have liquidity to move forward.

2. One Spouse Keeps the Home

One spouse may retain the home, often by buying out the other spouse’s share. This typically requires:

  • A current appraisal to establish the home’s fair market value.
  • Calculating the marital equity (value minus mortgage, with any adjustments for non-marital interests).
  • The retaining spouse paying the other spouse half (or the agreed share) of the marital equity, often through a refinance.
  • Refinancing the mortgage into the retaining spouse’s name alone, removing the other spouse from the loan.

Removing the non-retaining spouse from the mortgage is critical — otherwise that spouse remains liable for the loan even after the divorce, regardless of who is supposed to pay it.

3. Deferred Sale

In some cases — particularly when minor children are involved and a move would be disruptive — courts (or parties by agreement) may order a deferred sale, where one spouse remains in the home for a defined period before the home is sold. The arrangement must address mortgage payments, maintenance, taxes, insurance, and how the proceeds will eventually be divided. Deferred sales are not common but can be appropriate in specific circumstances.

Florida Homestead Protections

Florida’s homestead law (Article X, Section 4 of the Florida Constitution) provides significant protections for the family home:

  • Protection from forced sale by creditors of the homeowner.
  • A property tax exemption.
  • Restrictions on devise and alienation when a spouse or minor child resides there.

In a divorce, the homestead status of the property does not automatically prevent its sale or transfer between spouses, but it can complicate post-divorce planning, particularly for tax purposes and for claims by creditors of either party.

Tax Implications

Several tax considerations apply when transferring or selling a marital home:

  • Section 1041 transfers. Property transfers between spouses incident to divorce are generally tax-free under Internal Revenue Code § 1041. The receiving spouse takes the transferring spouse’s tax basis.
  • Capital gains exclusion. A married couple filing jointly can exclude up to $500,000 of capital gain on the sale of a primary residence; a single person, $250,000. Timing the sale relative to the divorce can affect which exclusion applies.
  • Mortgage interest deduction. Whichever spouse pays the mortgage and is legally obligated typically claims the deduction.
  • Property tax. Florida’s Save Our Homes assessment cap on homestead property may transfer in certain circumstances; the homestead exemption itself depends on residency and ownership after divorce.

Practical Considerations

Beyond the legal and tax frameworks, the practical questions matter just as much:

  • Can either spouse afford the mortgage, taxes, and maintenance on a single income?
  • Is one spouse emotionally or practically committed to staying for the children’s school stability?
  • What is the local market — is selling now favorable, or would waiting make sense?
  • How does keeping or selling the home affect the rest of the equitable distribution? A spouse who keeps the home may need to give up retirement assets or other property to balance the division.

The Bottom Line

The marital home is rarely just “a house” in a divorce. Decisions about it intersect with the rest of the marital estate, with tax planning, with mortgage liability, and frequently with the children’s lives. An early conversation with a Florida family law attorney about your specific home, financial picture, and goals can prevent costly mistakes later.

Frequently Asked Questions

Is the marital home automatically split 50/50 in a Florida divorce?

Florida is an equitable distribution state, not a community property state. Courts begin with the presumption of an equal division of marital property — including the marital home — but may order an unequal distribution based on statutory factors under Fla. Stat. § 61.075.

What if my name isn't on the deed?

Title is not the only factor. A home purchased with marital funds during the marriage is generally a marital asset regardless of whose name is on the deed. The non-titled spouse typically has a claim to the marital portion.

Can my spouse force me to sell the house?

If the house is a marital asset and the parties cannot agree on what happens to it, a court can order it sold and the proceeds divided. The court can also order one spouse to buy out the other's share, depending on the circumstances.

What happens to the mortgage in a Florida divorce?

Both spouses remain liable on a joint mortgage until the loan is paid off, refinanced, or assumed by one spouse alone. A divorce decree assigning responsibility to one spouse does not release the other from the mortgage in the eyes of the lender. Refinancing is typically required to fully remove a spouse from the loan.

Can I keep the house if I want to and my spouse wants to sell?

Yes, if you can buy out your spouse's share of the marital equity. This usually requires a refinance to pay your spouse and to remove them from the mortgage. If you cannot qualify alone, sale may be the only realistic option.

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The information on this page is for general informational purposes only and does not constitute legal advice. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation.