Selling and Transferring Marital Property During Separation and Divorce

Selling and Transferring Marital Property During Separation and Divorce

Few experiences can be as emotionally and financially devastating as divorce. As a case develops, dividing assets can become surprisingly complicated and challenging. While going through the process can be difficult, it’s essential to know what to expect when selling and transferring marital property during separation and divorce.

Florida is Not a Community Property State

In some jurisdictions such as Texas and California, all income, property, and debt a married couple earns or acquires during the marriage is considered community property. It is, therefore, equally owned by both parties. However, Florida is an equitable distribution rather than a community property divorce state. This means that your property and debt will be divided and awarded by a judge in a manner that he or she deems fair and equitable. To accomplish this task, the judge will look at different factors.

Dividing Marital Property

When a divorcing couple owns a home or other real property together, they typically have two choices: (1) One person gets the property, assumes any existing mortgage, and pays the other their fair share of any equity; or (2) The couple sells the property and divides any proceeds or expenses. Florida does not have formal legal separation but couples can arrange for certain conditions. For instance, if one person occupies a marital property during the pendency of the proceedings, they may agree that the absent individual will be responsible for the home’s expenses as a form of alimony.

Selling Marital Real Estate During or After Divorce

If the court orders that real property must be sold, there a usually several conditions. If one person is still living in the home, there will ordinarily be rules about maintaining the property and making it available for showings. One person may be ordered to pay all of the expenses until the property is sold, and then he or she will be repaid for their expenditures from the proceeds.

When a couple is divorcing, they may not be able to agree on important details regarding the sale. If they are not careful, ex-spouses can end up back in court fighting over something fundamental, like establishing a fair selling price. If possible, couples in this situation should consider agreeing on matters such as choosing and that they will defer to his or her professional judgment on critical matters. Parties should also determine how repairs and maintenance will be handled during the pendency of the sale.

Transferring Property After Divorce

When a couple divorces and one party retains residential or commercial real estate, they will need to take specific actions to have the other removed from the title and, if applicable, the mortgage documents. These steps should be taken as soon as possible following the divorce. Otherwise, you could encounter title and financing issues down the road.

If you anticipate dividing real property with your spouse during a divorce, it would be best to consult with a Florida real estate attorney to evaluate your situation. Guy Rabideau, Esq. and David E. Klein, Esq. are Florida Board-Certified Real Estate Attorneys with the experience you need to examine all aspects of your Palm Beach County real estate matter. We have the expertise and local knowledge you need to ensure that your interests are protected during every stage of the process.  Contact Rabideau Klein today to discuss your real estate legal needs.

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