What to Do if You’re Facing Divorce and Your Spouse Refuses to Sell the Property
Divorce is rarely easy, especially when property is involved. For many couples, the marital home isn’t just a major asset—it’s a source of memories, emotional attachment, and financial tension. In Florida, divorcing couples are expected to equitably divide their assets, but what happens when one spouse refuses to sell the property?
At David Morales Group|Brickell Brokers, located in Miami, Florida, we often work with clients who are facing this exact scenario. If your spouse is unwilling to cooperate in the sale of the marital home, you do have options under Florida law. Here, we’ll discuss how Florida courts handle property division and what legal actions you can take when your spouse refuses to sell.
Florida Is an Equitable Distribution State
In Florida, marital property is divided under the principle of equitable distribution. This doesn’t mean a strict 50/50 split. Instead, courts aim for a fair distribution based on each spouse’s contributions, needs, and circumstances. Key factors Florida courts consider are:
Length of the marriage
Economic circumstances of each spouse
Contributions to the marriage (income, homemaking, childcare, etc.)
Contributions to the acquisition or improvement of marital assets
Whether one spouse interrupted their career for the marriage
The desirability of keeping the home for a child’s stability
Understanding how these factors apply to your situation is critical if your spouse is digging in their heels over the house.
Is the Property Marital or Non-Marital?
Before you can address your spouse’s refusal to sell, determine whether the home is marital property.
Marital property: Acquired during the marriage or improved/paid for with marital funds.
Non-marital property: Owned by one spouse before the marriage or acquired through inheritance/gift and kept separate.
Many homes, especially if purchased during the marriage or titled jointly, will be considered marital. But even non-marital homes can be subject to division if marital funds were used for mortgage payments or renovations.
If you're unsure about how your home will be categorized, this is a great time to consult with a family law attorney.
If Your Spouse Wants to Keep the Home
In some cases, the refusing spouse isn’t just avoiding the sale—they want to keep the home.
This can lead to one of three outcomes:
Buyout: Your spouse may buy out your share of the home’s equity.
Deferred sale: A court may allow one spouse (often the primary caregiver for children) to remain in the home temporarily, with a sale delayed to a later date.
Court-ordered sale: If no agreement can be reached, the court may simply order the home to be sold and the proceeds divided.
A buyout is the most common resolution. Your spouse would need to pay you your share of the equity, and the house would be retitled in their name. An appraisal is almost always required to determine the home’s fair market value.
What If Your Spouse Refuses to Cooperate?
If your spouse refuses to sign paperwork, refuses to communicate, or blocks efforts to sell the home, you may need to involve the court.
Mediation
In Florida, courts often require spouses to attempt mediation before heading to trial. Mediation can be an effective way to resolve disputes over property without escalating to litigation.
Motion to Compel the Sale
If mediation fails, you can file a motion to compel sale with the family court. This motion asks the judge to order the property to be sold based on equitable distribution laws.
Partition Action
If the home is jointly owned, you may file a partition lawsuit. This is a separate legal action that can force the sale of jointly held real estate, even outside of divorce proceedings.
In Florida, a partition action can result in:
A court-ordered sale
Appointment of a special magistrate or real estate agent to oversee the process
A division of proceeds according to each party’s ownership interest
Dealing with a spouse who refuses to cooperate in selling the marital home during a divorce requires understanding your legal options and acting strategically.
Can the Property Be Sold Before the Divorce Is Final?
Yes. In some situations, particularly where the mortgage is in default or the home’s value is declining, you may petition the court for an interim (interlocutory) sale.
The court may approve a sale before the final divorce decree if:
The mortgage is past due
The house is costing more than either spouse can manage
One spouse is neglecting the property or refusing to maintain it
Therefore, if circumstances such as a past-due mortgage, unmanageable costs, or neglect threaten the property's value, seeking an interim sale through the court may be a viable option before the divorce is finalized.
Court-Enforced Solutions
When one party remains uncooperative, the court can step in with enforceable orders:
Appoint a realtor: A judge may assign a real estate agent to list and sell the home.
Set terms of sale: The court can dictate the asking price, timing, and division of proceeds.
Hold the spouse in contempt: If your spouse refuses to follow court orders, they may face fines, sanctions, or other penalties.
In extreme cases, the judge may grant exclusive possession of the home to the cooperating spouse to protect children or confirm fairness.
What About Minor Children?
Courts often take the best interests of children into account when deciding what to do with the marital home.
The court may:
Grant temporary possession of the home to the parent with primary custody
Delay sale until the children graduate or reach a certain age (a “delayed sale” or “deferred partition”)
Allow a future buyout of your equity after the children leave home
However, if the home can’t be maintained financially, the court will typically prioritize asset preservation and order it to be sold.
Your Financial Interests Matter
We always encourage clients to think both emotionally and strategically. Even if you’re ready to walk away from the house, your equity in the home is a valuable asset. Here’s how you can protect your interests:
Document everything: Keep written records of communications with your spouse, especially where they refuse to sell or cooperate. These can be used as evidence in court.
Get an independent appraisal: You don’t have to wait for your spouse to agree. Hire your own appraiser to understand the home’s fair market value.
Keep tabs on the mortgage: If your name is on the mortgage and it’s not being paid, your credit could be at risk. Monitor mortgage statements and speak with your attorney about protecting your credit.
Protecting your financial interests during a divorce where your spouse refuses to sell the property requires a strategic approach. Document all communications, obtain an independent appraisal, and monitor the mortgage to safeguard your equity and credit.
How Are Proceeds Divided?
Once the home is sold, the court will determine how the proceeds should be split. It may not always be a 50/50 division.
The court may look at:
Each spouse’s contributions to the home
Who paid the mortgage or made improvements
Whether either spouse used separate funds for the purchase or upkeep
If you feel you contributed more financially or that your spouse is blocking the sale unfairly, your attorney can present those facts in court to support a more favorable outcome.
What If the Home Is Worth Less Than the Mortgage?
If the home is “underwater” (worth less than what’s owed), you may need to consider a short sale, refinance, or agreement on how to handle the remaining debt.
A few options include:
Agreeing to a short sale with lender approval
One spouse assumes the mortgage in exchange for other assets
Splitting the deficiency debt as part of the divorce settlement
These situations require careful negotiation and often the help of a financial advisor or real estate attorney.
Dealing with a spouse who refuses to sell the marital home is stressful, but you’re not powerless. With experienced legal guidance, you can take the right steps to make sure your interests are protected and a fair outcome is reached.
Contact Us Today
If your spouse is refusing to sell the home or cooperate in the property division process, don’t wait. Our firm, David Morales Group|Brickell Brokers, is here to help you and serve clients in Palm Beach County, Broward County, Miami-Dade County, and Monroe County. Contact us today for a confidential consultation with a real estate divorce specialist.
