Who Has to Leave the House in a Divorce in Florida?

In a divorce, the spouses must address what happens to the marital home. Florida law does not provide an automatic, hard and fast rule as to who gets to keep the house following a divorce.

The answer to who must leave the home brings into play two differing concepts of ownership and possession. As a marital asset, the parties have legal and economic interests which Florida law recognizes and which courts must consider. Possession of the marital home involves weighing factors to arrive at an equitable result.

The Home as a Marital Asset

Under Florida law, marital property is subject to equitable distribution if the parties have not already agreed in a prenuptial (premarital) or separation agreement to a distribution. Marital property consists of those assets acquired during the marriage and before separation, except for gifts from non-spouses or property which a spouse inherits or receives by a will.

A marital home put in the name of both spouses qualifies as marital property. Even a home acquired during the marriage and before separation that is placed in just one spouse’s name comes within the reach of equitable distribution, but the spouses and court may consider that circumstance in awarding the home or any equity from it.

What About a Home Owned by One Spouse Before the Marriage?

Typically, a home that one spouse owned before the marriage remains separate property of that spouse during and after the marriage. However, dealing with the home doesn’t end there.

The non-owning spouse may have an interest in the increases in value of the home during the marriage and before separation. In this regard, Florida law distinguishes between active appreciation and passive appreciation.

Active appreciation consists of increases in value caused by the non-owner spouse’s actions. Normally, this takes the form of financial contributions such as payments by the non-owner spouse on the principal and other mortgages, loans (whether personal or equity) to pay for improvements, or direct payments or purchases for supplies and labor to improve the property.

Proof your active contributions as a non-owner spouse comes from:

• Checks and withdrawal statements from your separate bank account
• Statements from your credit card
• Invoices and receipts from suppliers or contractors
• Your signing promissory notes or loan documents for home improvements or otherwise on loans against the property

Passive increases in value result from market forces such as growing demand for housing, economic conditions, or changes in the community. As a general rule, passive appreciation remains the owner spouse’s separate property.

This is not always the case. By Florida statute, the non-owner spouse can enjoy some of the passive appreciation. The method to calculate the non-owner’s interest in passive value increases starts with calculating the amount of the passive appreciation:

Value of marital home at time of separation
Less: Value of marital home on the later of date of marriage or date the
marital home was acquired
Less: Value of any active appreciation

You multiply the passive appreciation by the “coverture fraction,” which is:

Total payments from marital funds on mortgages divided by
The value of the home on the later of:

• Date of marriage
• Date of acquisition, or
• Date of the first mortgage or other loan for which marital funds made
  payments

Deciding Who Gets the House

If you and your spouse have children, the court will likely consider the needs of the child in who possesses the house. That is, to afford stability to minor children, the spouse who keeps or is to keep the minor children primarily may be awarded possession of the home for some period before the children reach majority. The court may take into account:

• The age of the children
• Attendance of children in school
• The mental and emotional impacts of a move upon the children

You may argue that your own circumstances make it more equitable for you to keep the home. Ask a court to ponder financial obstacles to purchasing a new home, difficulties in obtaining new employment if selling the house forces a move away from the community, and your contributions to home.

The house is just one item to be handled in the overall division of the spouse’s property. An equitable distribution involves other marital property such as investments, vehicles, jewelry, and funds in bank accounts. To make division of marital property equitable or equal, a court may order that your spouse get more of the personal property or money in exchange for your obtaining possession of the house. Further, whichever spouse gets the home will likely assume all of the outstanding mortgages on it.

The court could rule to have the home sold and the proceeds distributed. In such a case, you might get more or less than your spouse depending upon:

• Other assets available to you
• Your contributions, such as repairs, upgrades, and additions to the home and to increases in value
• Whether you paid the mortgage from your separate funds or used separate funds for the down payment or purchase

Bear in mind that equitable distribution proceedings are significantly fact-intensive. A host of circumstances surrounding the family, each spouse’s finances, and each spouse’s personal or career lives impact how a court divides marital property and determines who gets the house.

You and your spouse can resolve these issues without having a trial or other court involvement through a separation agreement or even a premarital agreement. These documents can cover whether the house is sold or who gets it upon divorce or separation, assumption of mortgages, whether the house is deemed one spouse’s separate property, and whether the non-owner spouse gets the benefits of any active contributions.

Contact a Tampa Divorce Attorney Today.

Above is information. For legal advice, contact our Tampa Divorce Attorneys today via our website.

Sometimes life takes an unexpected turn. With the right approach and the representation of an attorney experienced in the nuances of Florida’s divorce laws, you can be confident in the outcome of your case. At Robert Sparks Attorneys, we take these matters seriously.