Written by attorney Dustin Michael Butler

Selling the Marital Home in the Marital Settlement Agreement

In today’s economy parties to a divorce often agree to sell the marital home in their marital settlement agreements. Often the sale of the marital home takes considerable time following settlement to accomplish and the parties must make arrangements for payment of maintenance expenses pending the sale. It is important to be very careful when making these estimations because both parties will be bound to the literal marital settlement agreement, even if certain events are not anticipated at execution. For example, in one recent case the parties agreed to split prepayment penalties, real estate taxes, assessment, association fees, and insurance until the home was sold. They also agreed to resolve a dispute with the roofing company at closing. Ultimately, the Wife in this case resolved the dispute without input of the Husband. The Husband argued that since he was not involved in the resolution of the dispute he should not be liable for half of the cost. The Fourth District Court of Appeal found “[t]he MSA [marital settlement agreement] required that the dispute between the parties and the roofer be resolved, not that they both make the decision to resolve the dispute." Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4th DCA 2012).

The marital settlement agreement further provided that the Husband pay the Wife $15,177 from his share of the proceeds of the sale of the home for equitable distribution resulting from the distribution of retirement accounts to the Husband. Unfortunately, there were no proceeds from the sale of the home and thus the Husband argued he should not be liable for that payment. The appellate court again found for the Wife stating “[p]ayment from the closing proceeds is not a conditions precedent, only a source for the payment." Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4th DCA 2012).

When drafting a marital settlement agreement it is very important that you consider the implications and consequences of even simple clauses in the agreement. If you are signing a marital settlement agreement it is imperative that you seek legal counsel.

See, Reilly v. Reilly, 37 Fla. L. Weekly D1970 (Fla. 4th DCA 2012).

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