During a divorce one topic that almost always comes up is the home. While monetary assets and other household furniture are relatively easy to divide, deciding who gets the home is a difficult task.
In most cases of divorce, both spouses want the home; this may be due to the value the home, because it is a familiar place or because one has always lived in that home and has developed fond memories. Today, if one just asks the court for sole use of the home just because he or she doesn’t get along with the other partner, this is not sufficient reason for the court to grant that request.
What Happens If Spouses Can’t Come To An Agreement About Their Home?
There are many instances when both ex-spouses cannot come to an agreement as to who gets the home and in such cases the court will get to make the determination. In each state, there are legal guidelines that determine which spouse can get the home or how to split the money if the home is sold.
Marital vs.Non-Marital Property
In Florida, there is a general property rule which states that the property is usually divided 50:50 if it is considered to be marital property or in other words property that was acquired by either spouse during the course of the marriage.
However, if the home was purchased by one of the spouses prior to the marriage and it was then used as a marital property for many years (usually more than 10 years), then in some cases the court may consider this to be marital property. Another scenario where the home may be considered marital property is if one of the spouses owned a home prior to marriage, the rented it out while he or she married and used that income to support the marriage, then in the opinion of the court this may be considered marital property.
There is also a term known as non-marital property which is property that was either acquired by either spouse prior to marriage. This non-marital property is usually not divided equally.
Who Gets The Marital home?
When it comes to marital property, how does one divide a home? To overcome the marital home issue during a divorce, there are some options. In Florida, the law states that all the assets have to be divided in an equitable manner; thus if you have a marital home, then it is divided based on its value. So, the first thing you should do is get home appraised for its value. Once you know how much it is worth, then here are your options:
Let The Caregiver Spouse Keep The Property: In some cases, one may opt to give the home to the caregiver spouse who is looking after the children. This makes sense as the children will not need to change schools, make new friends or cause other hardships by having to move. If the home is all paid for, then the ex-spouse getting the home only has to pay the property tax and other regular home finances. The court may decide that once the children are more than 18 years of age, then the home can be sold and the net profit can be divided between the two ex-spouses. However, if the home still has a mortgage then the matter does get complicated. If the spouse cannot make or afford to pay the mortgage payments, then he or she may need to refinance the home, but any default in payment will mean a loss of the home.
Buying Out: In some cases, if the two ex-spouses can come to an agreement, buying out is a good option. In this instance the ex-spouse staying in the home, pays the other ex-spouse their share in order to keep the home. For example, if the home is worth $400, 000, then one ex-spouse would pay the other ex-spouse $200, 000 to buy out his or her share. This is a great option if one spouse decides to remain in the home. It is also a more practical solution. The downside is the ex-spouse who wants to remain in the home may not have the money to buy out the other spouse’s share.
Sell The Home: There are many times when the couples can’t agree who gets the home and in such cases, the option is to sell the home and split the profits. After selling the home, the net proceeds are not always divided 50:50. For example in Florida if the marriage is less than 5 years (short-term) and one of the spouses can prove that they did contribute towards the major share of the bills or the mortgage and maintenance of the home, then the court may use that evidence and then divide the net profit based on ‘contribution percentage.’ For example, if one spouse contributed 80% towards the upkeep of the home, he or she will get to keep 80% of the money that results from the sale of the home.
What Happens If The Home Still Has A Mortgage?
If one ex-spouse decides to keep the home and if there is still a mortgage, the other ex-spouse’s name may still be on the mortgage. This can be a problem if the spouse who decides to stay in the home fails to maintain the mortgage payments; this will lead to a poor credit rating for both ex-spouses. To prevent this hassle, the spouse who decides to keep the home should refinance the mortgage into his or her name only. However, during a divorce money may be tight and refinancing may not be possible. In such scenarios, a divorce attorney can help you with solutions to your home. An attorney can help remove your responsibility from a mortgage, help you with a buyout and how to ensure that you also get 50% of profits if the home is sold.
Can I Stay In My Home During The divorce?
There are times when divorce causes a great deal of bitterness and in-fighting between the ex-spouses and in such cases, the court may not allow one ex-spouse equal access to the home, even if your name is on the deed. Whenever there is significant conflict between the ex-spouses, the court will grant one ex-spouse exclusive use of the home until the final divorce proceedings. This will mean that the other ex-spouse will have to move out, even though he/she legally owns the home.
What Is Exclusive Occupancy?
In general, there are no absolute rules as to who will get to keep the home, but there are scenarios when one spouse can get exclusive occupancy rights. Whenever there is domestic violence, child abuse or any type of violent crime by one ex-spouse, the other ex-spouse will most likely get to keep the home by the court.
The court can also order exclusive possession use of the home to an ex-spouse who requires it for a specific task; for example, if the home has been modified to look after a handicapped child, then the court will most likely let the ex-spouse looking after this child remain in the home since the welfare of the child is of utmost importance to the court.
Once the court grants exclusive use of the home to one ex-spouse, the other ex-spouse can no longer treat the home as if it belongs to him or her. One cannot just walk in and do whatever one wants. One must ask permission from the ex-spouse to enter the home, even if their name is on the deed or mortgage. If you do enter the home without permission, you can be arrested for trespassing.
Do I Need The Help Of A Family Law Lawyer?
If you are thinking about or in the process of getting a divorce and there is a home involved, you should get in touch with an experience family law attorney immediately. A home is a major investment and a good lawyer can help you get your share of the home if the home is sold or even exclusive possession if your goal is to remain in the home. Frost Law provides expert legal representation for divorce, division of marital property, including homes and other assets, child custody, child support, alimony and more. An initial consultation is always free and it will give you a chance to ask any questions regarding your home and other assets and weigh your options. Contact Frost Law today at (407) 670-5569.
