Navigating the Transfer of Real Estate During a High Asset Divorce

A Florida divorce is one of the most stressful events you can endure. Many individuals would like to stay put in the family home, especially if children are involved, and one of the most frequent questions from divorcing couples is whether they can keep the home.

The answer is it depends.

Florida is an “equitable distribution” state. That means that unlike community property states, where assets are tallied and divided “equally,” a divorcing Florida couple can divide assets as equitably as they determine. They will outline their decision in a divorce settlement crafted with the help of their attorneys.

In a high-asset divorce, there may be contributions to the marriage that deserve consideration even though they are not financial. The division of assets will be finalized in a divorce settlement that may not divide assets in a 50/50 manner but instead in a manner that reflects the contributions each made to the marriage. 

Transferring Real Estate

The court will first determine if the real estate is marital or separate property.

If marital property, under Florida law, married couples hold the property as tenancy by the entireties, meaning they are both 100 percent owners of the property and entitled to any profit and liable for any debts associated with the property. 

In the case of separate property, if the home was owned by one of the divorcing spouses before the marriage, it could remain the property of that spouse, providing that joint assets were not used to improve the home or pay off the mortgage. If the couple used marital assets to maintain the house or to pay down the mortgage and taxes, the equity in the home may be subject to an equitable distribution. 

If assets are needed to address the divorce settlement, one spouse may agree to a buyout over the property. A buyout releases one owner in exchange for assets, usually cash. That may be a necessary outcome when one person wants to remain in the home and the other wants to leave.

In a marriage where the primary asset is the home’s value, the court may order the house sold as part of the divorce. 

Key Words to Transfer Real Estate in a Florida Divorce

Dividing Florida property during a divorce is accomplished by filing a quitclaim deed. Real estate is transferred via a deed, and a quitclaim deed is the most efficient way to remove the name of a soon-to-be ex-spouse, removing all of their interest in the property, not just half. 

The recipient (grantee) is named as is the grantor (granting the property to the other). The deed does not indicate whether the grantor has an interest in the property. 

Within families, quitclaim deeds are often used when the grantee understands the grantor has some ownership of the property.

Transferring real estate during a high-asset divorce should involve keywords to transfer the property correctly. 

Under Marital Settlement Agreement and Final Judgment of Dissolution of Marriage should include:

• The date
• The correct names and addresses of the grantor and grantee
• The legal description of the property and parcel identification number
• Using a notary and both grantor and grantee signing before two witnesses
• Recording the deed at the county recorder’s office
  

The grantee then will have a clear title to apply for a new mortgage in their sole name. The other spouse then will have no further legal obligations to the mortgage holder. 

This property division should only be undertaken if the grantee maintains the home and pays all the bills.

If the divorcing couple has settled, the final divorce judgment will likely state both parties must sign the quitclaim deed. If one refuses, the other can take him back to court.

The receiving spouse can legally transfer the title by filing a copy of the divorce judgment with the clerk of court records. 

You will want to accomplish a transfer of property at the time of the divorce so that you are not surprised down the road when you go to sell a property you thought you had an interest in and find you must negotiate with a former spouse whose name is still on the property.  

Your Florida Family Law Attorney

Transferring real estate during a high-asset divorce can be complicated and open to interpretation. That is why Crystal Collins Spencer is your greatest asset at this time. She has spent more than three decades delving into the tactics one spouse may use against the other in a high-asset divorce. Let her experience work for your side in negotiating a favorable dissolution of your marriage.

Attorney Spencer works with individuals and complex family matters in Pensacola, Sandestin, Fort Walton, and the surrounding Florida communities. Contact her to schedule an appointment at (850) 795-4910.