In most divorces the house is the biggest asset and the biggest fight. Florida starts from the idea that what you built during the marriage gets split equally, and the house is usually the thing that has to be sold, bought out, or held to make that split happen. The piece almost nobody explains until it hurts: the divorce judgment tells the two of you who owes what, but it tells your mortgage lender nothing. Whoever signed the note is on it until it is refinanced or paid off. This is what I have seen at Northeast Florida closing tables, what each path really costs, what the tax rules say, and the questions I would put to your attorney before you sign anything. I am not a lawyer, and this is not legal advice.
- Florida begins at equal. Section 61.075 tells the judge to start from an equal split of marital assets and debts unless there is a reason not to. The house is usually the largest of those assets.
- The decree does not bind the lender. If both names are on the note, both of you owe the whole payment until a refinance or a sale takes one of you off.
- A buyout is a refinance, not a handshake. The spouse who stays has to qualify alone, at today's rate, for a loan big enough to pay off the old one and pay the other spouse their share.
- Keep paying while the case is open. A missed payment hurts both credit reports and can start a foreclosure that eats equity you were going to split.
- The tax exclusion is $250,000 per person or $500,000 on a joint return. The timing of the sale versus the divorce can change which number you get.
- Anyone who takes sides is costing you money. I show both spouses and both attorneys the same numbers at the same time. If listing nets more and you have the time, I will say so.
01. What Florida law does with the house, in plain English
Florida is an equitable distribution state. The statute is section 61.075. I have read it, your attorney is the one who applies it to your facts, but the shape of it is worth knowing before you talk to a buyer or an agent.
The statute tells the court to set aside each spouse's nonmarital property first, then divide the marital assets and liabilities starting from the premise that the split should be equal. A judge can move away from equal for reasons the statute lists, including each spouse's contribution, the length of the marriage, whether one spouse wasted marital assets after filing or in the two years before, and whether keeping the house makes sense as a home for a dependent child.
Marital versus nonmarital, at a general level
Assets acquired and debts taken on during the marriage are marital, whether one name or both names are on them. Assets one spouse owned before the marriage, or received as a gift or inheritance from someone other than the spouse, are generally nonmarital. Then the part that surprises people: real property held as tenants by the entireties, which is how most Florida couples take title, is presumed marital no matter when it was bought. The spouse who claims otherwise has to prove it. There is even a formula for a house one spouse owned before the marriage where marital money paid down the mortgage, so "my house from before we met" can still have a marital slice.
| Situation I see | What the statute generally says | What to ask your attorney |
|---|---|---|
| Bought together after the wedding, both on the deed | Marital. Presumed equal split of the equity. | Is there any reason for an unequal split in our case? |
| One spouse owned it before, added the other to the deed later | Titled as tenants by the entireties, so presumed marital. The spouse who says otherwise has to prove it. | Does adding a name to the deed count as a gift here? |
| One spouse owned it before, never added the other, marital income paid the mortgage | House may stay nonmarital, but principal paid down and a share of appreciation during the marriage can be marital. | How does the coverture fraction come out on our numbers? |
| Inherited during the marriage, kept in one name | Generally nonmarital unless it was retitled or marital funds went into it. | Did any renovation or refinance mix marital money in? |
Two dates and one document
Under subsection (7), the cutoff for deciding what is marital is generally the date the petition is filed, or an earlier separation agreement. If you are thinking about a new roof to help the sale, ask your attorney first.
Subsection (4) says a recorded judgment works as a conveyance, which is how a house moves into one spouse's name without the other signing a deed. It is also where the confusion starts, because people assume the judgment moved the mortgage too. It did not. That is section 03.
02. The three paths and what each one really costs
Every divorcing couple I have worked with ends up on one of three roads. Which one depends on the equity, who can qualify alone, the kids, and how much time the case gives you.
| Path | How it works | What it really costs | Where it goes wrong |
|---|---|---|---|
| Sell now and split | List it or sell for cash, pay off the mortgage and liens at closing, the title company cuts two checks per the agreement or judgment. | Listing: roughly 8 percent in commission and closing costs, plus repairs and two or three months of carrying costs. Cash: a price under retail, almost no other costs. | Nobody agreed in writing who pays what, so every repair invoice becomes a new argument. |
| One spouse buys the other out | The staying spouse refinances alone for enough to pay off the joint loan and pay the leaving spouse their share of the equity. | A new loan at today's rate, refinance closing costs, and one income instead of two on the application. | The staying spouse cannot qualify or the appraisal comes in low, and the case stalls for months waiting on a loan that will not close. |
| Keep it and sell later | Both stay on title, one lives there, usually until a child finishes school or a date in the agreement. Then it sells. | Years of shared exposure. Both credit reports ride on one person's payment habits. The leaving spouse cannot easily buy their next house. | The person living there stops paying, or the person who left needs the equity before the date and there is no mechanism to force it. |
The buyout is the one people want and the one that fails most, for a boring reason: the spouse who wants to stay qualified on two incomes when they bought the house, and now they are qualifying on one, at a higher rate. I have watched a buyout die because the staying spouse was $200 a month short on debt to income. If that is your plan, the first call is to a lender, before you agree to anything. Sean Bailey on my team runs that call in fifteen minutes.
Keeping the house for the kids can be right, and the statute lists it as a factor. But without a written date, a payment plan, and a rule for what happens if someone stops paying, you have not made a plan. You have delayed a fight.
03. Why the divorce decree does not bind your mortgage lender
Your mortgage is a contract between you, your spouse, and the lender. The divorce is a case between you and your spouse. The lender is not a party to it. The Consumer Financial Protection Bureau says it directly: a divorce decree or property settlement may assign a debt to one spouse, but the creditor can still collect from anyone whose name is on the loan. You are responsible until the creditor releases you in writing or your former spouse refinances and removes your name. Taking your name off the deed does not take your name off the mortgage, and mailing the lender a copy of your decree does not end your responsibility.
Read that twice if you are the spouse who is leaving. A missed payment is reported on both borrowers. The old payment sits in your debt to income ratio when you try to buy your next place. And if the house is foreclosed, the lender names every borrower, because Florida foreclosures are court cases under Chapter 702. My stop foreclosure page covers that.
What the federal due on sale rule does and does not do
Almost every mortgage has a due on sale clause that lets the lender call the loan if the property is transferred. Federal law, the Garn St Germain Act at 12 U.S.C. 1701j-3(d)(7), says a lender may not use that clause when a transfer results from a divorce decree, separation agreement, or property settlement in which the borrower's spouse becomes an owner. So moving the house into one spouse's name will not, by itself, get the loan called. But that protects the transfer of title. It does nothing to release the other borrower from the note.
Getting a name off the loan
- Refinance. The staying spouse takes a new loan alone, which pays off the joint loan. New rate, new closing costs, and they qualify on their own income and credit. This is the normal buyout.
- Assumption or release. Some loans can be assumed by one borrower, or a borrower released, with the servicer's approval. The CFPB has reported homeowners hitting long delays and repeated paperwork requests trying to do this. Ask, but do not build the whole settlement on it.
- Sell. The loan is paid off at closing and both of you are done with it the same afternoon.
If the refinance is not real, find that out from Sean now, not six months into the case.
04. Who pays the mortgage while the case is open
A contested Florida divorce can run a year or more. The mortgage does not pause. Neither does the insurance, the taxes, or the HOA.
The honest answer is that it is whatever you two agree to, or whatever the court orders on a temporary basis, and I will not guess what a judge will do. What I can tell you is what happens when nobody decides. The spouse who moved out stops paying because "I do not live there." The spouse who stayed cannot cover it alone. Ninety days later there is a default letter with both names on it, and by the time a settlement is signed the payoff has grown by late fees, escrow advances and the lender's attorney fees, all of it out of equity you were going to split. I have seen $12,000 evaporate this way while two people argued about $900.
The statute anticipates this. Section 61.075(5) lets either spouse ask for an interim partial distribution during the case, and the first example of "good cause" it gives is the need for funds to avoid losing an asset through foreclosure or repossession, or the loss of housing. It also lists intentional dissipation of marital assets after the petition is filed as a factor that can justify an unequal split. Letting a house go into default is not something a court tends to reward.
What I tell people: get the temporary arrangement in writing early, even if it is an email between counsel. Keep proof of who paid what, because eight months of carrying the house only counts later if somebody wrote it down. Do not let the insurance lapse in hurricane season. And if one of you is active duty, which in this town is a lot of the people who call me, read my military protections page before either of you waives anything.
05. The tax angle: the home sale exclusion, and how divorce changes it
I am not an accountant, and these rules have exceptions I will not cover. But the basic structure matters enough that you should know it before you agree on a sale date.
Per the IRS: if you sell your main home at a gain, you can generally exclude up to $250,000 of that gain, or up to $500,000 on a joint return. To qualify you pass an ownership test and a use test: you owned the home for at least two of the five years before the sale, and you lived in it as your main home for at least two of those five years. On a joint return either spouse can meet the ownership test but both have to meet the use test. And you generally cannot use the exclusion twice within two years.
Now the divorce wrinkles, from Publication 523.
- Transferring the house to your spouse is not a sale. If you give your share of the home to a spouse or former spouse as part of the divorce settlement, the IRS treats that as no gain and no loss. Nothing to report.
- The spouse who moved out can sometimes still count the house as their residence. If you are an owner and your spouse or former spouse is allowed to live there under a divorce or separation instrument and uses it as their main home, you can treat the home as your residence for the use test. That is what makes "keep it and sell later" workable on the tax side for the spouse who left. It depends on the decree or written agreement actually saying so.
- Divorce can qualify you for a partial exclusion. If you sell before hitting the two year marks, Publication 523 lists becoming divorced or legally separated among the unforeseeable events that can qualify you for a reduced exclusion. Reduced, not zero.
Why timing matters: sell while still married and file jointly, and you are looking at the $500,000 figure. Sell after the divorce is final and each of you is looking at $250,000. On most houses in Duval and Clay that is still plenty. On a St. Johns house bought fifteen years ago that has doubled, the gap can be real money. Talk to a tax professional before you pick the closing date, not after.
06. Selling when the two of you do not agree
People call me and say "my spouse will not sign." I cannot buy a house from one spouse over the other's objection. In Florida the owner of homestead property has to be joined by their spouse to sell it. That comes from Article X, section 4 of the Florida Constitution, and it applies even if only one name is on the deed. If both names are on the deed, I need both signatures for the obvious reason. If someone tells you they can close a marital home with one signature, hang up.
What can happen, at a general level, is that the court decides. In a contested case the judgment has to identify each marital asset, value it, and say which spouse gets it. In practice that can mean awarding the house to one spouse with an offsetting payment to the other, ordering it sold and the proceeds divided, or giving one spouse exclusive use for a period, which the statute specifically contemplates when a dependent child is involved. I have seen all three.
One more thing. Under section 689.15, when a marriage is dissolved, a house held as tenants by the entireties becomes owned as tenants in common, and Florida's partition statute in Chapter 64 lets a tenant in common file an action to divide or sell jointly owned land. So a former spouse stuck on title after the divorce is not necessarily stuck forever. Whether partition is available in your case, and whether the final judgment already dealt with the house in a way that changes the answer, is squarely an attorney question.
If you want to sell and your spouse does not, ask your attorney whether the court can order a sale now, who gets credit for carrying costs in the meantime, and what enforcement you have if the house is awarded to your spouse and they never refinance. The best clause I have seen in a settlement agreement answers that last one: refinance by a date certain, or the house goes on the market.
07. Timeline: listing versus cash when the case has a deadline
Divorce sales are rarely about the highest price. They are about a price two people can both live with, on a date the case can work with.
| List it with an agent | Sell it to me for cash | |
|---|---|---|
| Time to a firm contract | Two to eight weeks, longer if it needs work or is priced for an argument. | Days. One walkthrough and a written number both attorneys can read. |
| Contract to closing | Thirty to forty five days for a financed buyer, with inspection and appraisal contingencies that can reopen the price. | As fast as title work and your attorneys allow. Often two to three weeks. |
| Repairs and showings | Whatever the inspection and the buyer's lender require, plus strangers in the house while you still live there. | None. I buy as is and clean it out. |
| Risk of the deal dying | Real. Financing falls through, appraisal comes in low, buyer gets cold feet. In a divorce that can mean a missed court deadline. | Very low. There is no lender on my side to say no. |
| Price | Highest available. That is the whole reason to do it. | Under retail. That is the trade. If a cash buyer will not show you the math, walk away. |
What that looks like with real numbers
A house like a lot of the ones I see in Orange Park and the Westside. Illustrative figures, not a specific client.
The house would sell for about $360,000 listed after $6,000 of paint, carpet and a cleanout. The mortgage payoff is $215,000. Both spouses have moved on, so the house sits empty at about $2,300 a month for mortgage, insurance and taxes.
Listed: $360,000, minus $215,000 payoff, minus about $28,800 in commission and seller closing costs at 8 percent, minus $6,000 in prep, minus roughly $6,900 for three months of carrying an empty house. That leaves about $103,300, or about $51,650 to each spouse.
Cash to me: On a house that only needs paint and carpet my number lands near 70 percent of the finished value, so call it $252,000. Minus the $215,000 payoff leaves about $37,000, or $18,500 each, closing in three weeks with no carrying costs and nobody staging a house they are grieving.
On that house, listing puts roughly $33,000 more in each person's pocket. I would tell both of you to list it, and I would offer to be the agent who does it. The cash number only makes sense if something else is true: the final hearing is in five weeks, the mortgage is three payments behind and the lender's attorney fees are stacking up, or the two of you cannot get through ninety days of showings without landing back in court. Change one fact, say the roof is done and the insurer has sent a nonrenewal, and the gap shrinks to a few thousand dollars per person, because a financed buyer's lender wants the roof replaced before closing and I was replacing it anyway. That is the house I would buy.
The cash offer versus listing calculator runs this math with your numbers, side by side, and does not ask for your email to show you the answer.
08. How I work with two people who are not speaking, and when I will tell you to list
I have sat across from couples who could not be in the same room. The process is the same either way, because it has to be.
- Both spouses get the same information at the same time. If I send a number to one of you, the other gets the same email the same minute, and so do both attorneys if you want them copied. I do not have a side conversation with whoever called first.
- I do not take sides. Not because I am noble. Because the moment one spouse thinks I am working for the other, the sale is dead.
- I show the math. After repair value, repairs, carrying costs, closing costs, resale costs, and my margin. Every line. If one attorney wants to argue my repair estimate is high, good, that is what the line is there for.
- I make money when the house resells. That is how a cash buyer works, and I would rather you hear it from me. Ask what I expect to make on your house and I will show you the line.
When listing is the better answer
I am a licensed Florida real estate agent as well as a buyer, so I can do either one. I say list it when the house is in decent shape and you have ninety days before anything in the case forces a sale; when both of you can agree in writing on a list price, a floor, and who pays for what; when neither of you needs the equity in the next thirty days for housing; and when the mortgage can stay current through a listing period.
If those four things are true, listing wins, usually by tens of thousands of dollars between you. I will run both numbers either way, with no fee and no pressure, and you can take them to your attorney or another agent. If the case, the house, or the two of you need certainty more than the last dollar, then we talk about a cash offer, and I will tell you exactly what you are trading for it.
09. Questions people ask me
Can I sell the house before the divorce is final?
Often, yes, if both of you agree and your attorneys approve. Some couples sell during the case and have the title company hold the proceeds in escrow until the judgment says how to split them. Whether the court needs to sign off is a question for your attorney.
My name is off the deed. Am I off the mortgage?
No. The deed and the note are different documents. The CFPB is explicit that taking your name off a home title does not take your name off the mortgage, and that sending the lender your decree does not end your responsibility. Only a refinance, a written release from the lender, or a sale that pays the loan off gets you off the note.
My spouse was ordered to pay the mortgage and stopped. What happens to me?
The lender reports the missed payments on both borrowers and, if it goes far enough, names both of you in a foreclosure case. Your remedy against your spouse runs through the divorce court. Your exposure to the lender is immediate and does not wait for that.
How is the money split at closing?
The mortgage, any liens, HOA balances, and prorated taxes are paid first. The title company disburses the rest according to your settlement agreement or the judgment, or holds it in escrow until there is one. I do not decide the split and I do not touch the money.
Will selling in a divorce cost us the capital gains exclusion?
Usually not. A married couple filing jointly can exclude up to $500,000 of gain on a main home, and each single filer up to $250,000, if you meet the two year ownership and use tests. Publication 523 has specific rules for divorced taxpayers, including a partial exclusion if divorce forces an early sale. Ask a tax professional before you pick a closing date.
Can my spouse buy me out without refinancing?
They can pay you your share of the equity, but unless the loan is refinanced, assumed, or you are released in writing by the lender, you are still a borrower. That is not a buyout. It is a risk you are carrying for free.
What if only one of us wants to sell?
I cannot buy a marital home from one spouse. Florida requires the spouse to join in a sale of homestead property. What can happen is that the court orders a sale, awards the house to one spouse with a payment to the other, or gives one spouse exclusive use for a period. That is an attorney question.
Where these numbers come from
- Florida Statutes section 61.075 (2025), Equitable distribution of marital assets and liabilities: subsections (1), (4), (5), (6) and (7).
- Florida Statutes section 689.15 (2025), tenants by the entireties become tenants in common on dissolution of marriage.
- Florida Statutes Chapter 64 (2026), Partition of property, including section 64.031.
- Florida Constitution, Article X, section 4(c), spousal joinder required to sell homestead.
- Florida Statutes Chapter 702, judicial foreclosure.
- 12 U.S.C. 1701j-3(d)(7), the Garn St Germain Act exemption from due on sale clauses for transfers under a divorce decree, separation agreement, or property settlement.
- Consumer Financial Protection Bureau, "Can a debt collector contact me about a debt after a divorce?", last reviewed April 14, 2023, and the CFPB Issue Spotlight on homeowners facing problems with mortgage companies after divorce or death of a loved one.
- IRS Topic No. 701, Sale of your home, and IRS Publication 523 (2025), Selling Your Home. Both reviewed September 2026.
A plain note: I am a Florida home buyer and a licensed real estate agent, not an attorney, an accountant or a mediator. This is general information drawn from the statutes and agency guidance listed above, plus what I have seen at closing tables. It is not advice for your case. Divorce law turns on facts, the judge, and the documents you sign. Statutory references reflect Florida and federal law as I understand it in September 2026. Please confirm the specifics with a licensed Florida family law attorney and a tax professional before you agree to anything about the house. If you need an attorney referral, call me and I will share names. I do not get paid for that.