In any divorce, Florida law calls for a fair and equitable distribution of property. Fla. Stat. 61.075(1). However, a unique element to the fairness and equity standard is that a court may take into account many different factors in order to determine what is truly equitable. Therefore, it is not always a clear 50/50 division of property and assets. One asset that is always hotly contested is the marital home.
In order to first determine what may occur with your home, it is important to determine if it is in fact marital property. One manner the court uses to determine this is to assess at what time the home was purchased. If the home was purchased during the time of your marriage, it is considered a marital asset, subject to distribution. However, if the home was bought prior to marriage, by one of the parties, it may become more complex. If the home was bought prior to marriage it is likely to be considered a non marital asset. However, this asset could turn marital if certain actions were taken. For instance, if marital funds were spent on paying off the mortgage this can classify the home as a marital asset. Your Orlando Divorce Attorney can look at your specific situation to help determine if the home is separate or marital property.
Once determined to be a marital asset, the court will then proceed to distribution tactics. Of course, a true distribution of the property would require a sale and split of the profits. This is a common result for a couple who have no minor children, and is usually able to be negotiated between the parties. Your Orlando Divorce Attorney can assist you in coming up with a negotiation strategy or settlement offer that allows for one spouse to retain the home in exchange for other assets or debts. Working collaboratively towards a common goal can be much more beneficial to both sides than allowing the court to decide on the distribution. However, if you or your partner wants to retain the marital home the court may need to consider these many other factors. In considering property division, the court looks to the
“(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(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.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.”
The factor most courts look to in determining the retention of a marital home is the involvement of minor children in the proceeding. If you and your spouse share a minor child, the court will likely award the marital home to the primary caregiver. Retaining the marital home by the primary caregiver has been found to be a compelling factor by the court and further to be in the best interest of the child. In Edgar v. Edgar, 668 So.2d 1059 (Fla. 2d DCA 1996), the court noted the existence of minor children in the family and awarded the marital home to the wife until the children reached the age of majority. Similarly, in the case of Dehler v. Dehler, 648 So. 2d 819 (Fla. 4th DCA 1995), the court expanded upon this, and added in the requirement of “absent compelling financial reasons,” the parent with primary time sharing should be awarded the home until age of majority or wife remarries. It is important to know your goals and expectations in regards to your marital home, and discuss with your Orlando Divorce Attorney your options.
When facing divorce, property distribution can be very stressful for all parties. Working with a knowledgeable Orlando Divorce Attorney can ease the burden and help both parties to come up with solutions that everyone can live with.
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