Dividing property during a divorce is often one of the most emotionally charged aspects of the process—especially when it comes to the marital home. In Florida, equitable distribution laws govern how property, including real estate, is divided between spouses. But equitable doesn’t necessarily mean equal. If you’re going through a divorce in Delray Beach, understanding how these laws work can help you make informed decisions—particularly when it comes to who gets to keep the house.
Let’s explore how equitable distribution works in Florida, what defines marital vs. non-marital property, and the different ways the family home can be divided or retained during a divorce.
Understanding Equitable Distribution in Florida
Florida is an equitable distribution state, which means marital assets and liabilities are divided fairly—but not always equally—between divorcing spouses. The court aims to achieve a distribution that is just and equitable based on a variety of factors.
What Is Considered in Equitable Distribution?
Florida courts consider multiple factors when determining an equitable division of property, including:
- The duration of the marriage
- The financial circumstances of each spouse
- Contributions to the marriage (including homemaking and child-rearing)
- The desirability of keeping the marital home for the benefit of minor children
- Each spouse’s contribution to acquiring, improving, or incurring liabilities on the property
It’s important to note: equitable distribution does not automatically mean a 50/50 split. One spouse may receive a larger share depending on the specific facts of the case.
Marital vs. Non-Marital Property: What’s the Difference?
Before dividing the home or any asset, the court first determines whether the property is marital or non-marital.
Marital Property
Marital propertyincludes assets and debts acquired by either spouse during the marriage. This typically includes:
- Income earned during the marriage
- Real estate purchased jointly during the marriage
- Retirement accounts and pensions accumulated during the marriage
- Mortgages or other debts incurred during the marriage
If a home was purchased during the marriage—regardless of whose name is on the title—it is likely considered marital property and subject to equitable distribution.
Non-Marital Property
Non-marital propertygenerally includes:
- Property owned by one spouse prior to the marriage
- Inheritances or gifts received by one spouse individually
- Property excluded by valid prenuptial or postnuptial agreements
However, non-marital property can become commingled with marital assets. For example, if one spouse owned a home before the marriage but added the other spouse to the deed or used marital funds to pay the mortgage, the property may be partially or entirely considered marital.
Who Gets the House? Common Options in a Florida Divorce
Once it’s established that the house is marital property, the next question is: what happens to it?
There are typically three primary options for handling the marital home in a Delray Beach divorce:
1. One Spouse Buys Out the Other
In many cases, one spouse wants to keep the home—often for the sake of stability, especially when children are involved. The spouse who wishes to retain the house may buy out the other’s equity share.
For example, if the home has $200,000 in equity, the staying spouse may pay $100,000 to the other spouse. This can be done through:
- A cash payment
- Offsetting other marital assets (such as retirement accounts or vehicles)
- Refinancing the mortgage in one spouse’s name
2. Selling the House and Splitting the Proceeds
When neither spouse can afford to buy the other out—or neither wants to keep the home—selling the house and dividing the proceeds is often the simplest solution. This eliminates the need for ongoing financial ties and helps both parties start fresh.
However, couples must agree on:
- Listing price
- Realtor selection
- Handling of repairs or updates
- Distribution of sale proceeds after paying off the mortgage and costs
3. Deferred Sale (Delayed Distribution)
In some cases, the court may approve a deferred sale, especially if minor children are involved. This allows one spouse (typically the custodial parent) to remain in the home for a specified time—often until the children graduate high school—after which the house is sold and proceeds are divided.
This approach can reduce disruption in the children’s lives but may complicate financial planning for both parties, especially if the mortgage remains in both names during the deferral period.
How a Divorce Attorney Can Help Protect Your Property Rights
Dividing real estate during a divorce isn’t just about emotion—it’s about equity, legal rights, and long-term financial consequences. A skilled divorce attorney can provide critical guidance by:
- Determining whether your home is marital or non-marital property
- Evaluating your legal and financial options for keeping or selling the house
- Negotiating fair buyout or settlement terms
- Ensuring proper valuation of the home, including appraisals and market analysis
- Addressing tax implications, mortgage liabilities, and future title transfers
Attempting to resolve property division without legal counsel can lead to unfair outcomes, unanticipated tax burdens, or costly legal disputes down the road.
Frequently Asked Questions About Equitable Distribution in Florida
Can my spouse take the house even if it’s in my name?
Yes, if the home was acquired during the marriage using marital funds, it is considered marital property—even if only one spouse’s name is on the deed.
What happens to the mortgage after divorce?
If one spouse keeps the house, they usually refinance the mortgage to remove the other spouse’s financial responsibility. If the home is sold, the mortgage is paid off from the sale proceeds.
What if we both want to keep the house?
If you can’t agree, the court may order the home to be sold and the proceeds divided. In some cases, judges may favor the custodial parent if it benefits minor children to remain in the home.
How do we value the house during divorce?
The fair market value is typically determined through a professional appraisal. Each party may obtain their own appraisal if they disagree on value.
Can we agree on a property settlement without going to court?
Yes. If both spouses reach a mutual agreement on dividing assets and debts, the court will generally approve it, provided it’s fair and follows Florida law.
Conclusion: Protect Your Rights in a Delray Beach Divorce
Deciding who keeps the house in a divorce can have long-lasting implications—financially, emotionally, and legally. Florida’s equitable distribution laws provide a framework, but every situation is unique. Whether you’re considering a buyout, sale, or deferred arrangement, working with an experienced divorce attorney ensures your interests are protected.
At Klein Law Group, we understand the challenges that come with dividing a home in a Delray Beach divorce. Let our team guide you through the equitable distribution process and help you make confident, informed decisions about your future.
