One of the first questions a divorce client often has is whether they can keep their house. Unfortunately, the answer depends on a whole host of issues, such as the amount of debt on the house, whether there are minor children, whether the individual can afford to keep the house (i.e., if repairs are necessary, could you pay them?), etc. Just as no two individuals are the same, no two divorce cases are the same.
Florida Divorce Law – Is the Home a Marital Asset?
In most divorce cases, the marital home is the largest asset. However, in some cases, the home could be deemed a nonmarital asset if it was owned by one of the parties before the marriage and title was never transferred to both parties. For example, if the wife owned the house before the marriage and the home was never transferred to both parties as husband and wife, the house may be ruled a nonmarital asset.
Assuming the home in a divorce is a marital asset, the issue of equitable distribution can be complex. It is best to consult an Orlando, Kissimmee Divorce Lawyer about these issues.
Equitable Distribution of Assets & the Marital Home in Florida Divorce Cases
Equitable distribution means that the Florida courts assume a 50/50 split unless there is a good reason otherwise. The court may award use of the marital home to one party as part of an alimony or child support award or for use with regard to the housing of a minor child. This may be done in the best interest of the child/children or some other special consideration.
Suggested Reading: Marital Property & Divorce
It could be done for example, in the case of a stay at home Mom allowing her to reside in the home with minor children until the last child turns 18 unless she is not able to afford the home. Or this could be done in the case of a father, either who is more able to afford the home, or has custody of the children. The parties may agree thereafter to either buy one another out of the house or sell the home and take an equal distribution.
It is also possible if the parties cannot agree, that the court could order that the house be sold and distributed. See Florida Statutes §61.075 which details factors the court may consider in distributing marital assets; section (1)(h):
The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
Related article: The Basics of Filing for Divorce in Florida