During your divorce, a primary concern is the distribution of property. Most notably this includes the home you and your spouse shared. Florida law dictates how your property is divided based on the legal principles of equitable distribution. However, when the martial home still has a mortgage, the term of equity can turn complicated rather quickly. Your best option is to contact an Orlando Divorce Attorney to obtain guidance on legal complexities raised by an outstanding mortgage and divorce.
While discussing your marital home with your attorney, the most important detail to note is if the house is encumbered by a mortgage. You will also need to discuss your ultimate desire with the property, whether that be to retain possession or sale thereof. If you or your spouse wishes to remain in the home it is imperative to remove the respective name from the outstanding mortgage. If you do not take proper steps to have your name removed, you will be financially and legally responsible for said mortgage if your former spouse defaults on payments. Because Florida Family courts have no jurisdiction over mortgage lenders, the court can not order such removal. Therefore, your Orlando Divorce Attorney will discuss with you the options available to you in your case.
The most common way an individual removes another party’s name from a mortgage is through refinancing. The court can order in the final judgment, a party to pursue refinancing in order to remove the respective spouses’ name from the property. Further, it can be contracted that you are to receive documentation of the refinancing upon its conclusion. Unfortunately, refinancing is not guaranteed. A lender who is willing to approve a mortgage based on a single partner may be difficult to find. The court cannot step in and force a lender to approve the refinancing of the marital home, so for some individuals, this may not be an option.
If refinancing is not an option, and neither party wishes to remain in the home, the parties may agree to sell the home and use the proceeds to satisfy the outstanding mortgage. Your Orlando Divorce Attorney can help you draft a marital settlement agreement covering the critical terms of the sale. The marital settlement agreement would need to address issues such as:
- The Price the Home is to be Sold For
- The Realtor the Parties Agree to Have List the Home
- How the Sale Proceeds Will be Applied to the Mortgage and Cost Associated with the Sell
- Address any Tax Consequences for the Sell
- How the Equity or Deficiency will be Equitably Divided by the Parties
Finally, if one of the parties to the divorce will not agree to the sale of the home the court has the authority to order the partition of the home. Partition is the term the Florida Statutes use, when a court orders a piece of property divided, sold or auctioned. The court will determine that the property cannot be divided and should first allow the parties the opportunity to sell the home to carry out its order. However, the court also has the authority to have the property auctioned. If a party wished to invoke the court’s power to order the home sold, then it must plead partition in the divorce petition or the court will not have its jurisdiction properly invoked and the court will not be able to order the home sold.
If you find yourself contemplating divorce and have questions concerning the sale of the martial home and removing your name from a mortgage and note, then our Orlando Divorce Attorneys are here to help you. Your Orlando Divorce Attorney can explore and discuss options with you involving refinancing or sale applying to your unique situation. Our firm also has offices in Panama City Beach, Pensacola, Fort Walton Beach, and Navarre for your convenience throughout the state of Florida. Contact our office today at (800) 822-5170 and schedule your consultation.