How Are Marital Homes Handled in Divorce
In a dissolution of marriage (divorce), Florida is an equitable distribution state for dividing marital assets and liabilities, including real estate, which includes marital homes. While a judge will often order a marital home sold and the equity divided 50/50, there are other ways the marital home asset can be handled. Equitable means fair rather than equal, so Florida Family Court has a variety of options.
Before any option handling a marital home is presented, the true ownership of the home must be established. If the home belonged entirely to a party before marriage, he or she would continue to own the property in its entirety. The home will be determined nonmarital and not subject to any division during or after divorce. However, if the home was not entirely paid for and marital funds were used to continue paying the mortgage, then the home becomes marital property. Another way property acquired before marriage becomes marital property is when the deed is changed to read both parties as owners. Further complications arise when marital money is used to pay for the upkeep of the home and or to make improvements on the home, especially in long-term marriages. Another situation that sometimes allows the court to determine a home is marital is when both parties have had free access to the home. It is imperative to find a Family Law lawyer experienced in Florida divorce settlements involving marital homes to ensure you have access to the latest information and legal guidelines involving the determination of marital or nonmarital and how marital homes are handled in a divorce.
As mentioned in the first paragraph, once the legal determination of a home is “marital,” there are a variety of ways marital homes are handled in a divorce.:
Sell and split: The marital home is sold, and the equity is split between parties. Often the split is each party receives half of the equity. Other times, for various circumstances such as how much sweat equity has been used, who has paid the mortgage, and how the home was used will create an equitable rather than equal equity distribution.
Buy-out: One party pays the other party a fair amount to “buy out” that party’s interest in the home. The deed is then put in only the name of the party retaining the home. It is especially important to make sure the remaining mortgage is refinanced in the name of the owner party only. As the bank or owner of the original mortgage is not a party in the divorce, if both names stay on the mortgage, then both parties will be responsible for the debt. Should the party owning the home default on mortgage payments, if the names on the mortgage are not changed, the party who no longer owns or lives in the home will still be responsible for paying the remaining debt.
Lump-sum alimony: sell the home and use the equity from the proceeds as a lump sum alimony payment. This type of alimony is a one-time payment.
Protracted sale when equity will then be split: especially when there are minor children and a spouse who has not been providing income for the marital expenses, a marital home may be ordered to continue to provide a residence for the former spouse and the minor children. The person who has been paying the mortgage will continue to do so until the children can support themselves (l8 years of age or mentally or physically handicapped). At that time, the home will be sold and the equity equitably split. Should the former spouse become financially able to support the family, or should he or she remarry or cohabitate with a nonrelative, the person paying the mortgage could return to court to petition the court for the home to be sold and the equity divided fairly.
How a marital home is handled in a divorce can be complicated, especially when there are extenuating circumstances involving whether the home is marital or nonmarital and how and by whom the mortgage was paid. For persons living in the Florida counties of Palm Beach, Martin, St. Lucie, Miami-Dade, Broward, Orange or Hillsborough or New York, or Washington DC Attorney Grant Gisondo is a board-certified Family Law lawyer with over a decade of experience who is ready to help. To answer your general questions involving divorce, including how marital homes are handled in a divorce, Attorney Gisondo offers a free, initial, in-office consultation. His office is located in Palm Beach Gardens, and his phone number is (561) 530-4568 to call for an appointment. Office hours are Monday through Friday from 9:00 AM to 5:00 PM and for new clients on Saturdays from 8:30 AM to 1:00 PM.