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Sorting Out The Finances And Possession Of The Marital Home In Divorce

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When a married couple acquires the home they intend to live in for a long time and raise a family, it marks the beginning of a central part of most people’s lives, and naturally causes both spouses to have a strong emotional attachment to the property. A big component of most divorces is dividing marital assets, and the family home is the largest asset for most couples. For some couples, the decision whether to keep or sell the home is easy, but this issue can quickly become complicated if neither spouse can afford to keep the home while also maintaining another household, or the market for selling is not favorable at the time of the divorce. Considering all the available options during the early stages of a divorce will give spouses time to determine which options are available and preferred, and allow for any planning or financial arrangements that may be necessary to settle the matter. A discussion of how divorcing spouses can deal with keeping or disposing of the marital home in the short- and long- term, as well as how Florida law specifically addresses the division of this asset, will follow below.

Approaches for Dividing the Marital Home

Unless a couple agrees otherwise, the law in Florida says that marital assets are divided equitably, which usually means equally, except when circumstances indicate an equal division would be unfair. When it comes to family homes, the easiest resolution is to sell the home and split the profits 50/50. Problems arise when one spouse wants to remain in the home for the sake of the children’s stability, and the other spouse is set on selling. In these situations, the spouse wanting to sell could simply relinquish his/her share of the asset and walk away, or the other spouse could buy out his/her share. These outcomes are rare, and a further complication can enter the mix when both parties want to sell, but the projected sale price is likely to be below the amount owed on the mortgage. Some options to consider for overcoming these obstacles include:

  • selling the home, and deciding how or by whom the remaining balance on the mortgage will be paid off;
  • allowing one party to remain, with he/she refinancing the home to assume complete responsibility for the mortgage; or
  • keeping the existing mortgage, but removing the other spouse’s name so he/she is no longer financially obligated.

The spouse relinquishing property rights over the marital home is entitled to some compensation, which could be paid through a home equity loan when refinancing or by executing an agreement to pay off the other spouse’s share over a set period of time.

Credits and Setoffs

Florida law prevents spouses in a divorce from profiting off the sale of the marital home, even if the sale is delayed until children leave for college, unless there is a settlement agreement or court order outlining how the proceeds will be divided. This provision ensures, in part, that a spouse who paid for repairs and the mortgage while the divorce is pending and before the home is sold gets the appropriate credit for the contribution made. If a court must decide how the proceeds of a sale will be divided, the following factors are considered:

  • if the exclusive use and possession of the home is given to one party;
  • if any alimony paid is partially intended to cover the expenses of the home;
  • whether the payment of child support is partially intended to cover the expenses of the home;
  • which party can claim property interest and taxes paid on his/her federal tax return; and
  • if either party will owe capital gains upon a sale.

Get Help

Dividing assets as a result of divorce is one of the most important aspects of this process, and has some of the longest reaching consequences. Working with an experienced divorce attorney, like Fort Lauderdale’s Joyce A. Julian, P.A., who know how to protect your interests, makes it more likely the outcome of the case will be fair and balanced. Contact the office for a free consultation, and learn how Joyce A. Julian, P.A. will fight to get the result you deserve.

Resource:

leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.075.html

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