Divorce Property Sale in Florida: Laws & Process
Florida operates under the principle of equitable distribution, meaning the court aims for a fair, but not necessarily equal, division of marital assets. Selling a home during a Florida divorce requires navigating specific standing orders and statutes that govern how property value is shared and when a sale can legally occur.
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Florida-Specific Quick Facts
These facts are specific to Florida and may differ from the general process described below. Always verify with your local court.
Last verified: 7/1/2026
Florida Selling a jointly owned home during divorce is one of the most significant financial and emotional decisions in the separation process. This guide covers your options for the marital home, the sale process, dividing household contents, and the tax implications of selling property during divorce.
Property division laws vary significantly by state — some states follow community property rules (generally 50/50), while others use equitable distribution (fair but not necessarily equal). This guide covers the general process and highlights state-specific differences in property division.
How It Works in Florida
Florida’s Equitable Distribution Framework
In Florida, property division is governed by Florida Statute § 61.075. Unlike community property states where assets are split 50/50, Florida courts begin with the premise that the distribution should be equal, but may adjust based on factors such as the economic circumstances of each spouse, the duration of the marriage, and contributions to the home. This means if one spouse contributed significantly more to the property's value or maintenance, an unequal distribution may be argued, though it is not guaranteed.
Determining Marital vs. Non-Marital Property
Florida law makes a sharp distinction between marital and non-marital assets. Marital assets include those acquired during the marriage, even if only one spouse’s name is on the title. Non-marital (separate) property includes assets acquired before the marriage or through a non-spousal gift or inheritance. However, under Florida law, if non-marital property increases in value during the marriage due to the use of marital funds (like paying the mortgage) or the efforts of either spouse (like a home renovation), that 'active appreciation' may be considered a marital asset subject to division.
Selling the Home During the Divorce Process
In many Florida judicial circuits, 'Standing Temporary Orders' are automatically issued upon the filing of a divorce petition. These orders typically prohibit both parties from selling, transferring, or encumbering major assets—including the marital home—without a written agreement from both spouses or a court order. If one spouse refuses to sell, the other may file a 'Motion for Partition' under Chapter 64 of the Florida Statutes, which can force the sale of the property, though this is often a last resort.
Tax and Capital Gains Considerations in Florida
Because Florida has no state income tax, divorcing couples do not face a state-level capital gains tax on the sale of a home. For federal purposes, couples can often still utilize the IRS Section 121 exclusion. If the sale occurs after the divorce, a spouse may still qualify for the $250,000 exclusion if the divorce decree allows them to remain in the home for a period before the sale, as their 'use' of the home is credited to the non-resident spouse. Confirm specific tax liabilities with a CPA or tax attorney familiar with Florida filings.
Selling a Home During Divorce
The family home is often the largest shared asset in a divorce, and deciding what to do with it is one of the most consequential decisions in the settlement process. Whether you sell the home, one spouse buys out the other, or you continue co-owning temporarily, understanding your options is essential.
This guide covers the key considerations for handling a jointly owned home during divorce, including the sale process, dividing proceeds, estate sale options for household contents, and state-specific property division laws.
Options for the Marital Home
When divorcing, couples generally have three options for the family home:
- •Sell the home and split proceeds: The most common option. The home is listed, sold, and net proceeds are divided according to the divorce settlement. This provides a clean break and liquidates the asset.
- •One spouse buys out the other: One spouse keeps the home by refinancing the mortgage in their name alone and paying the other spouse their share of the equity. This requires qualifying for the mortgage independently.
- •Co-own temporarily: Some couples continue co-owning the home for a set period — often until children finish school or until market conditions improve for a sale. This requires a clear legal agreement about responsibilities and eventual sale.
Property Division: Equitable Distribution vs. Community Property
How property is divided in divorce depends on your state's system:
- •Equitable distribution states (majority): Marital property is divided "fairly" but not necessarily equally. Courts consider factors like each spouse's contribution, earning capacity, length of marriage, and custody arrangements.
- •Community property states: Marital property is generally divided 50/50. These states treat assets acquired during the marriage as equally owned by both spouses.
Whether your state follows equitable distribution or community property significantly affects how home proceeds are divided. Check the state-specific section below for your state's approach.
Preparing the Home for Sale
If you decide to sell, preparing the home for market involves:
- •Agreeing on a listing price (typically based on a comparative market analysis or appraisal)
- •Deciding whether to make repairs or sell "as-is"
- •Determining who will handle showings, staging, and maintenance during the listing period
- •Choosing a real estate agent (both spouses should agree)
- •Addressing the household contents — what each spouse takes, what is sold, what is donated
Estate Sales and Household Contents in Divorce
Dividing household contents is often one of the most emotionally charged parts of divorce. When neither spouse wants certain items, or when the home needs to be emptied for sale, an estate sale or liquidation sale can be an effective solution.
An estate sale company can:
- •Inventory and value all household contents
- •Facilitate the division of items between spouses based on the settlement
- •Sell remaining items through a multi-day estate sale
- •Donate unsold usable items
- •Provide a cleanout to prepare the home for sale
The proceeds from the sale of household contents are typically added to the marital estate and divided according to the settlement agreement.
Tax Considerations When Selling in Divorce
Selling a home during divorce has specific tax implications:
- •Capital gains exclusion: If the home has been the primary residence for at least 2 of the last 5 years, up to $250,000 (single) or $500,000 (married filing jointly) of gain may be excluded. The exclusion may be available to a departing spouse even after divorce under certain conditions.
- •Timing of the sale: Selling before the divorce is final may allow both spouses to claim the $500,000 married exclusion. Selling after may limit each spouse to $250,000.
- •Transfer incident to divorce: Transferring the home to one spouse as part of the divorce settlement is generally tax-free at the time of transfer.
- •Mortgage payoff: The existing mortgage is paid off at closing from sale proceeds. If one spouse is keeping the home, they must refinance to remove the other spouse from the loan.
Official Florida Resources
Always confirm current forms and fees directly with the court or agency.
Frequently Asked Questions
Florida-Specific Questions
Can I sell my house before the divorce is final in Florida?
Yes, but only if both spouses sign a written agreement or if the court issues an order authorizing the sale. Many Florida counties have standing orders that prevent the sale of property immediately after a divorce is filed.
What happens if my name isn't on the deed of our Florida home?
In Florida, if the home was purchased during the marriage with marital funds, it is generally considered marital property regardless of whose name is on the deed or mortgage.
How does Florida handle a house owned before marriage?
While the home itself may be non-marital, any increase in equity paid for with marital income or value added through improvements during the marriage may be subject to equitable distribution.
General Questions
Can I force the sale of the house during divorce?
Yes. If the home is marital property and the spouses cannot agree, either spouse can petition the court to order the sale. The court can order a "partition sale" or include the sale as part of the divorce decree.
Who gets to live in the house during the divorce?
This is typically determined by temporary orders. Courts may award exclusive possession to the primary caregiver of children, or require one spouse to vacate. The mortgage and maintenance must continue to be paid regardless of who lives there.
Do I have to sell the house, or can I keep it?
You can keep the home if you buy out your spouse's share of the equity and refinance the mortgage to remove their name. You'll need to qualify for the mortgage independently and have the financial means to maintain the home.
How are household contents divided in divorce?
Spouses typically negotiate who gets which items. Items neither spouse wants can be sold through an estate sale or liquidation sale, with proceeds added to the marital estate. Sentimental items are often the most contentious and may require mediation.
Should we sell the house before or after the divorce is final?
Selling before the divorce is final may allow you to claim the full $500,000 married capital gains exclusion. Selling after may limit each spouse to $250,000. However, the right timing depends on your specific financial and emotional situation — consult your attorney and tax professional.
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