Real estate is often the most valuable asset a couple owns—and the most emotionally fraught. Whether it’s the family home, a vacation property, rental units, or commercial buildings, dividing real estate during a divorce can be complicated. These assets carry financial, legal, and sentimental weight, and their disposition can have long-term consequences for both spouses.
In Tampa, Florida’s equitable distribution laws govern how real estate is handled in divorce settlements. That means courts must divide marital property fairly—but not necessarily equally. In many cases, the parties can agree on how to handle the property, but when they can’t, the judge will decide. The outcome depends on a wide range of factors, including the type of property, how it was acquired, who paid for it, and what each spouse wants after the divorce.
A knowledgeable Tampa divorce lawyer can help you navigate the legal, financial, and strategic issues involved in dividing real estate. From valuation and tax consequences to ownership rights and mortgage liability, the right guidance can protect your interests and help you reach a fair and workable resolution.
Identifying Real Estate as Marital or Non-Marital Property
The first step in dividing real estate during a divorce is determining whether the property is marital or non-marital.
- Marital property includes any real estate acquired by either spouse during the marriage, regardless of whose name is on the title.
- Non-marital property includes real estate that one spouse acquired before the marriage, inherited individually, or received as a gift from a third party—unless it was later commingled.
For example:
- A home bought during the marriage using joint funds is marital.
- A rental property owned by one spouse before the marriage, but refinanced during the marriage with joint funds, may be partially marital.
- An inherited vacation home that has remained in one spouse’s name and was not used for joint purposes is likely non-marital.
A Tampa divorce lawyer will conduct a detailed analysis of deeds, mortgage statements, closing documents, and financial records to determine the character of each property.
The Marital Home: Options and Considerations
The marital home is often the most contentious asset in a divorce—not only because of its value but also because of its emotional significance and connection to children.
There are typically three ways to handle the marital home:
1. Sell the Home and Divide the Proceeds
This is the most straightforward approach. Once the home is sold, the net proceeds are divided according to the parties’ agreement or the court’s order. The division may be equal or adjusted based on factors like:
- Unequal financial contributions
- Unequal distribution of other assets
- One party paying down the mortgage after separation
- Repairs or improvements made by one spouse
Before a sale, the court may need to determine who will maintain the property, pay the mortgage, and cover upkeep costs.
A Tampa divorce lawyer can help negotiate sale terms, select a realtor, and ensure a fair division of proceeds.
2. One Spouse Keeps the Home
Sometimes one spouse wants to keep the home—especially when children are involved. In this case, the spouse who keeps the home must “buy out” the other’s interest. This usually involves:
- Getting a home appraisal to determine fair market value
- Refinancing the mortgage in the name of the retaining spouse
- Paying the other spouse an agreed-upon amount for their share of the equity
This option requires that the retaining spouse has sufficient income and credit to qualify for refinancing and cover ongoing expenses.
A Tampa divorce lawyer will ensure the buyout is structured fairly and enforceably, and that all necessary title and mortgage changes are completed.
3. Deferred Sale or Co-Ownership
In rare cases, the parties may agree—or the court may order—that the home be retained for a period of time before selling. This often happens when:
- Children are close to graduation and both parties agree to keep them in the home temporarily
- The housing market is depressed and a sale would result in a loss
- The parties are co-owning as part of a broader property division agreement
This approach requires a clear written agreement addressing:
- How expenses will be shared
- How the property will be maintained
- When and how the home will be sold
- How proceeds will be divided at that time
A Tampa divorce lawyer can help draft a comprehensive agreement to prevent future disputes.
Investment and Rental Properties
Dividing rental or investment properties involves not only property division but also tax implications, cash flow analysis, and potential business considerations. Key questions include:
- Who will retain ownership?
- Will the property be sold or transferred?
- What is the current value and income potential?
- Are there depreciation or capital gains tax issues?
- How is the property titled and financed?
Some spouses may continue to co-own a rental property post-divorce and split the income. This can be risky without a solid agreement.
A Tampa divorce lawyer will work with appraisers, accountants, and financial advisors to value the property and structure a division that protects your interests.
Valuing Real Estate in Divorce
Valuation is a crucial step in dividing real estate. Accurate valuation ensures that both parties understand the true worth of the asset and can negotiate a fair settlement. Valuation methods include:
- Appraisals by licensed real estate professionals
- Comparative Market Analysis (CMA) from realtors
- Property tax assessments (less reliable for market value)
- Income-based valuation for rental properties
Disputes often arise when spouses obtain separate appraisals with different values. In such cases, the court may order a joint appraisal or choose one expert over another.
A Tampa divorce lawyer can coordinate the valuation process and challenge inaccurate or biased appraisals.
Managing the Mortgage and Debt Obligations
Dividing real estate also means addressing the mortgage. If the property is not sold, the mortgage must be refinanced or otherwise addressed to:
- Remove one spouse’s name from liability
- Avoid future defaults that could damage credit
- Clarify who is responsible for payments, taxes, insurance, and maintenance
If the retaining spouse cannot refinance, they may be required to sell the property instead. Courts are reluctant to leave both parties liable on a joint mortgage after divorce unless there is a clear exit strategy.
A Tampa divorce lawyer will help ensure that all obligations are clearly defined and enforceable in the final judgment.
Quitclaim Deeds and Title Transfers
When one spouse is awarded a property, the other must transfer title. This is typically done through a quitclaim deed, which releases one party’s interest without warranties. Key points:
- The deed must be properly executed, notarized, and recorded with the county
- If the mortgage is not refinanced, the transferring spouse may still be liable for debt
- Title companies and lenders may require additional documentation
A quitclaim deed does not affect the mortgage—it only transfers ownership. That’s why refinancing is usually required in conjunction with a title transfer.
A Tampa divorce lawyer can draft and record the deed and ensure compliance with all legal requirements.
Homestead Protection and Tax Implications
Florida’s homestead laws provide certain protections to primary residences, including:
- Exemptions from forced sale to satisfy certain debts
- Property tax caps and exemptions
- Restrictions on how title can be transferred or encumbered
These laws may impact your ability to transfer or divide the marital home, especially when minor children are involved. For example, one spouse cannot sell or mortgage the homestead without the other’s consent if it’s titled jointly.
Tax implications must also be considered, including:
- Capital gains taxes if the property is sold and the gain exceeds IRS exclusions
- Depreciation recapture on rental properties
- Transfer taxes and fees on deeds and refinancing
- Homestead exemption loss if title changes before the new year
A Tampa divorce lawyer will coordinate with tax professionals and title agents to prevent costly mistakes.
Prenuptial Agreements and Real Estate
If the parties have a prenuptial or postnuptial agreement, it may define how real estate will be divided in the event of divorce. These agreements can:
- Classify property as marital or non-marital
- Set rules for buyouts, refinancing, or sale
- Waive certain rights (e.g., homestead claims or equity)
- Determine who remains in the home
The court will enforce the terms of the agreement unless it is found to be invalid or unconscionable.
A Tampa divorce lawyer will analyze the prenup and apply its terms to the current property division negotiations.
Real Estate and Parenting Plans
In cases involving children, the marital home often plays a key role in parenting plans. Courts may consider:
- Whether maintaining residence in the home provides stability for the children
- Proximity to schools, medical providers, and support systems
- Whether the custodial parent can afford to keep the home
- Whether selling the home would create hardship for the children
Sometimes the court awards temporary exclusive use of the home to the parent with majority time-sharing, even if the property will be sold later.
A Tampa divorce lawyer will address these considerations in both the financial and custody components of the case.
Co-Ownership After Divorce
While generally not advisable, some spouses choose to co-own property after divorce. Reasons may include:
- Waiting for the market to improve before selling
- Allowing one spouse to live in the home temporarily
- Continuing to operate a rental or investment property together
If this path is chosen, a detailed agreement is essential. It should cover:
- How profits and expenses will be shared
- How decisions will be made
- What happens if one party wants to sell
- A clear timeline or trigger for ending co-ownership
A Tampa divorce lawyer will draft an enforceable co-ownership agreement to minimize future disputes.
FAQ
Q: How is real estate divided in a Florida divorce?
A: Florida uses equitable distribution, which means real estate is divided fairly based on a variety of factors—not necessarily 50/50.
Q: What if the house is only in one spouse’s name?
A: If the home was acquired during the marriage with marital funds, it’s likely considered marital property, regardless of title.
Q: Can I force my spouse to sell the marital home?
A: Possibly. If neither party can afford to keep it or if no agreement can be reached, the court may order the home sold.
Q: Do we have to get the house appraised?
A: It’s highly recommended. An appraisal ensures both parties understand the fair market value, which is essential for buyouts or sales.
Q: Who pays the mortgage while the divorce is pending?
A: The court may order one spouse to continue paying, or the parties may agree to split the cost temporarily. This is often addressed in temporary relief motions.
Q: What if my spouse won’t sign the quitclaim deed?
A: The court can order the transfer and may sign the deed on the spouse’s behalf if they refuse to comply with the judgment.
Q: How does the court handle rental properties?
A: Rental properties are usually valued and divided based on equity and income. One spouse may keep the property while the other receives offsetting assets.
Q: Can real estate be used to satisfy alimony or child support?
A: Yes. Sometimes property is transferred or sold as part of a larger support or settlement arrangement.
Q: What if the home is upside down on the mortgage?
A: The court may divide the debt, order a short sale, or allocate responsibility for deficiency judgments. Each case depends on its facts.
Q: Do I lose my homestead exemption if I transfer title?
A: Possibly. Timing matters. A Tampa divorce lawyer will coordinate with your tax advisor to avoid losing valuable exemptions.
Real estate division can make or break a divorce settlement. It’s not just about who gets the house—it’s about equity, liability, cash flow, credit, taxes, and long-term planning. With proper valuation, legal strategy, and attention to detail, you can ensure a property division that reflects your contributions and safeguards your future. Whether you’re protecting a family home, preserving an investment, or seeking your fair share, a skilled Tampa divorce lawyer is your most valuable asset in the process. When handled correctly, real estate in divorce doesn’t have to be a battleground—it can be the foundation of a smart and sustainable new beginning.
The McKinney Law Group: Legal Support for Every Stage of the Divorce Process in Tampa
From filing to final judgment, we’re with you every step of the way. At The McKinney Law Group, we provide comprehensive divorce services for Tampa clients, whether your case is just beginning or you’re ready to resolve final issues.
We help with:
✔ Initial strategy and filing for divorce
✔ Temporary orders for support and custody
✔ Discovery and documentation for financial disclosures
✔ Mediation, negotiation, or courtroom advocacy
✔ Finalizing and enforcing divorce settlements
Call 813-428-3400 or email [email protected] to speak with an experienced Tampa divorce attorney.