Florida divorces often involve property located somewhere other than Florida.
Maybe you and your spouse own a vacation home in North Carolina. Maybe you purchased a rental property in Georgia during the marriage. Maybe one spouse relocated to Florida while the couple still owns real estate in another state.
That creates an important issue in a Florida dissolution of marriage:
Can a Florida divorce judge actually divide, sell, or transfer real estate located in another state?
The answer is: sometimes—but not in the same way the court can deal with Florida property.
A Florida court can generally consider out-of-state real estate when dividing the marital estate. If the court has personal jurisdiction over both spouses, it may also order a spouse to take certain actions involving that property.
But a Florida judge generally cannot directly partition, transfer title to, or exercise control over real estate located outside Florida.
That distinction can become very important in a divorce involving property in multiple states.
Is Out-of-State Real Estate Part of Equitable Distribution in a Florida Divorce?
Potentially, yes.
Florida’s equitable distribution statute requires the court to identify and distribute the parties’ marital assets and liabilities. Fla. Stat. § 61.075.
Real estate does not automatically fall outside the marital estate simply because it is located in another state.
For example, if a married couple living in Tampa purchases a vacation property in North Carolina during the marriage, the parties’ ownership interest in that property may still be considered in equitable distribution.
The complication is not necessarily whether the property is marital.
The complication is what the Florida court has the power to do with the property.
Why Can’t the Florida Judge Simply Order the Property Sold?
Because real estate is treated differently from many other marital assets.
A Florida court can divide bank accounts, retirement accounts, vehicles, and other marital assets through orders directed at the parties.
But an order that directly partitions or transfers real property operates on the land itself.
Courts call that in rem jurisdiction—jurisdiction over the property.
When the property is physically located in another state, Florida courts generally do not have in rem jurisdiction over that land.
That remains true even though the property is being addressed as part of a Florida divorce.
What Did the Florida Courts Say About Out-of-State Property in Divorce?
A leading Florida case is Polkowski v. Polkowski, 854 So. 2d 286 (Fla. 4th DCA 2003).
In Polkowski, the parties were involved in a Florida dissolution of marriage, but they owned real property in North Carolina.
The Florida trial court ordered the North Carolina property partitioned and sold.
The Fourth District Court of Appeal reversed that portion of the judgment.
The problem was jurisdiction. The Florida court did not have in rem jurisdiction over land located in North Carolina and therefore could not directly partition and sell that property.
That means a Florida divorce court cannot simply treat land in another state exactly the same way it would treat a marital home located in Florida.
Does That Mean the Florida Divorce Court Cannot Address the Property at All?
No.
This is the most important distinction.
A Florida court may lack jurisdiction over the land, while still having jurisdiction over the husband and wife.
That is known as in personam jurisdiction, or personal jurisdiction.
If both spouses are properly before the Florida divorce court, the court may be able to determine their respective rights concerning out-of-state property and order them to take actions necessary to carry out the equitable distribution.
So the Florida judge may not be able to directly change title to a North Carolina house.
But the judge may be able to order a spouse to sign a deed relating to the North Carolina house.
What Can a Florida Divorce Judge Order a Spouse to Do?
Depending on the facts and the court’s personal jurisdiction over the parties, the judge may be able to order a spouse to:
- execute a deed;
- sign listing documents;
- cooperate with the sale of the property;
- execute closing documents;
- take steps necessary to refinance the property;
- transfer his or her ownership interest;
- comply with a valid order entered by a court in the state where the property is located; or
- take another specific action needed to implement the equitable distribution award.
The key is that the Florida court is exercising authority over the spouse, rather than directly exercising authority over the land.
Florida courts have recognized this distinction in cases including Sammons v. Sammons, 479 So. 2d 223 (Fla. 3d DCA 1985), and Hirchert Family Trust v. Hirchert, 65 So. 3d 548 (Fla. 5th DCA 2011).
What Is the Difference Between Dividing the Property and Ordering the Spouses to Act?
Consider a divorcing couple who owns a cabin in Georgia.
A Florida judgment stating:
“The Georgia property is hereby partitioned and title is transferred to the Wife”
attempts to operate directly on Georgia real estate.
That creates a jurisdictional problem.
A Florida judgment stating:
“The Husband shall execute all documents necessary to convey his interest in the Georgia property to the Wife”
is different.
That order operates personally against the husband.
If the Florida court has personal jurisdiction over him, it may have authority to require him to sign the necessary documents even though the property itself sits outside Florida.
For divorcing spouses, this difference may sound technical, but it can determine whether an equitable distribution provision is enforceable.
Can the Florida Judge Decide Which Spouse Should Receive the Property?
Potentially, yes.
A Florida divorce court with personal jurisdiction over both spouses may determine their equitable rights and obligations concerning assets located outside Florida.
In other words, the court may determine that one spouse should receive the parties’ interest in the out-of-state property as part of the overall equitable distribution.
But deciding who should receive the property is different from the Florida court directly changing legal title to the property.
The court may need to accomplish the result through orders requiring the parties to execute the appropriate documents.
Can a Florida Court Order Out-of-State Property Sold in a Divorce?
This is where careful drafting matters.
A Florida court generally cannot enter a direct partition judgment against out-of-state property.
However, if the court has personal jurisdiction over both spouses, it may have authority to order the spouses to cooperate with a sale.
For example, the court might order both spouses to:
- sign a listing agreement;
- cooperate with a real estate agent;
- accept an offer under specified conditions;
- execute closing documents; and
- distribute the resulting proceeds as required by the final judgment.
The legal distinction is that the order is directed toward the spouses rather than directly toward the foreign land.
What If One Spouse Refuses to Cooperate?
This is another reason jurisdiction and careful drafting matter.
If a Florida court properly orders a spouse to sign documents, cooperate with a sale, or otherwise take action concerning the out-of-state property, refusal to comply may create enforcement issues.
The court may have remedies against the noncompliant spouse because the obligation arises from a personal order entered in the dissolution case.
But the court still cannot solve the jurisdictional problem simply by entering an order that directly transfers title to land over which Florida has no jurisdiction.
Could You Need a Second Court Case in Another State?
Yes.
In some divorces involving out-of-state real estate, proceedings may be necessary in both Florida and the state where the land is located.
For example, the Florida divorce court may determine the parties’ financial rights as part of equitable distribution.
But if an actual partition action is necessary because the parties cannot agree on a sale or transfer, that action may need to be filed in the state where the property is located.
So a Florida divorce involving property in another state can sometimes require coordination with an attorney or court in that other jurisdiction.
What If the Property Is the Largest Asset in the Marriage?
Then this jurisdictional issue can become especially important.
Suppose the parties have relatively little cash or retirement savings, but they own a $750,000 investment property in another state.
That property may be central to the equitable distribution.
The Florida court may need to determine:
- whether the property is marital or nonmarital;
- its fair market value;
- the amount of any mortgage or other debt;
- the parties’ equity in the property;
- whether one spouse should receive it;
- whether it should be sold;
- how sale proceeds should be distributed; and
- what personal orders are necessary to accomplish the intended result.
The fact that the Florida court cannot directly exercise jurisdiction over the foreign land does not necessarily prevent the court from accounting for its value when dividing the marital estate.
What If Only One Spouse Is on the Deed?
That does not necessarily answer the equitable distribution question.
Florida equitable distribution focuses on whether an asset is marital or nonmarital, not simply whose name appears on the title.
Real estate acquired during the marriage may potentially be marital even if only one spouse appears on the deed, depending on the facts and applicable law.
If the property is located outside Florida, however, the court must still consider the jurisdictional limitations on directly transferring or partitioning that land.
So there are really two separate questions:
First: Is the property part of the marital estate?
Second: What can the Florida court legally order concerning property located in another state?
Those questions should not be confused.
What If the Property Was Owned Before the Marriage?
That raises a different equitable distribution issue.
Property acquired before marriage may begin as a nonmarital asset under Fla. Stat. § 61.075.
But depending on what happened during the marriage, there may be claims involving marital contributions, appreciation, mortgage reduction, improvements, or other financial issues.
The out-of-state location does not eliminate those equitable distribution questions.
It may, however, affect how any resulting award can ultimately be enforced against the real property.
What If My Spouse Lives Outside Florida Too?
Then the analysis becomes even more complicated.
A Florida court can have jurisdiction to dissolve a marriage without necessarily having personal jurisdiction over a nonresident spouse for every financial issue.
For the court to enter personal orders requiring someone to transfer, sell, or otherwise take action regarding property, the court generally needs personal jurisdiction over that person.
So if one spouse lives outside Florida and contests jurisdiction, the court may need to address personal jurisdiction before it can enter a full equitable distribution award.
This issue should be evaluated early in the case.
Why the Pleadings Matter
In a divorce involving real estate in another state, the petition and responsive pleadings can matter.
Florida courts have recognized that parties who invoke the court’s equitable jurisdiction and ask it to distribute all marital property may place their respective rights to out-of-state assets before the court.
For example, in Gil v. Mendelson, 870 So. 2d 825 (Fla. 3d DCA 2003), the court addressed foreign real estate in the context of equitable distribution where the parties had requested distribution of their property regardless of location.
That does not give the Florida court direct jurisdiction over foreign land.
But it reinforces the distinction between the court’s authority to determine the spouses’ rights as part of equitable distribution and its lack of authority to directly exercise jurisdiction over real estate beyond Florida.
What Should You Do If Your Florida Divorce Involves Out-of-State Real Estate?
Identify the issue early.
Important questions include:
- Where is the property located?
- When was it acquired?
- How is title held?
- Is it marital or nonmarital?
- What is the property worth?
- Is there a mortgage?
- Do both spouses agree the property should be sold?
- Does one spouse want to keep it?
- Does the Florida court have personal jurisdiction over both spouses?
- Will a deed need to be executed?
- Will another state’s court need to become involved?
These questions can affect settlement negotiations, discovery, the equitable distribution schedule, and the language used in the final judgment.
The Bottom Line
When real estate located outside Florida becomes part of a Florida divorce, the property does not simply disappear from the equitable distribution analysis.
A Florida court may be able to determine the spouses’ rights to the property and account for its value when dividing the marital estate.
But there is an important jurisdictional limit:
A Florida divorce court generally cannot directly partition or transfer title to real estate located in another state.
Instead, if the Florida court has personal jurisdiction over the spouses, it may be able to order them to execute deeds, cooperate with a sale, or take other actions necessary to carry out the equitable distribution.
In some cases, a separate proceeding in the state where the property is located may still be necessary.
Speak With a Tampa Divorce Attorney About Out-of-State Property
Real estate located outside Florida can add another layer of complexity to an already complicated divorce.
Cigar City Law, LLC represents clients in Tampa, Hillsborough County, and throughout Florida in dissolution-of-marriage cases involving equitable distribution, real estate, investment properties, businesses, retirement assets, and other significant marital property.
Cigar City Law, LLC 401 E. Jackson St., Suite 3300 Tampa, FL 33602 Telephone: (813) 575-7579
Frequently Asked Questions About Out-of-State Property in a Florida Divorce
Is property in another state still part of my Florida divorce?
Potentially, yes. If the property is marital, the parties’ interest in it may be considered as part of Florida equitable distribution even though the real estate is physically located elsewhere.
Can a Florida divorce judge order a house in another state sold?
A Florida court generally cannot directly partition out-of-state real property. However, if it has personal jurisdiction over the spouses, it may be able to order them to cooperate with a sale and execute the necessary documents.
Can a Florida judge give me the out-of-state house?
The court may potentially determine that one spouse should receive the parties’ interest in the property as part of equitable distribution. But directly transferring legal title to out-of-state land presents a separate jurisdictional issue.
Can the judge make my spouse sign a deed?
Potentially, yes. A court with personal jurisdiction over a spouse may be able to order that spouse to execute a deed affecting property located in another jurisdiction.
What if my spouse refuses to sell the property?
The Florida court may be able to enter and enforce personal orders requiring cooperation. If a true partition action is necessary, however, a proceeding in the state where the property is located may also be required.
Does it matter if only one spouse is on the deed?
Not necessarily. Title alone does not always determine whether property is marital for Florida equitable distribution purposes.
Will I need a lawyer in the other state?
Possibly. If the divorce requires an actual partition action or other proceeding directly affecting title to the property, local counsel in the state where the real estate is located may be necessary.
This article is for general informational purposes only and does not create an attorney-client relationship or provide legal advice regarding any particular case.