Who Gets the House in a Florida Divorce?

Posted by Antonio G. Jimenez, Esq. | Nov 12, 2023 | 0 Comments

Navigating through a divorce can be emotionally and legally challenging. One of the most pressing concerns for many couples is determining the fate of their marital home. In Florida, the division of Property during a divorce follows the principles of equitable distribution. Let's delve deeper into understanding how this operates and what it could mean for the division of your home.

Deep Dive: Understanding Equitable Distribution in Florida

Florida's divorce landscape is characterized by its commitment to fairness and justice, encapsulated in the principle of equitable distribution. This approach to asset and liability division, though rooted in the concept of equity, encompasses many considerations that shape its application in divorce cases. Here's an in-depth exploration:

Equity vs. Equality

While the term 'equitable' might be misconstrued as 'equal,' in the context of property distribution, they are distinct:

Balanced, Not Identical: Equitable distribution doesn't always imply a 50-50 split. Instead, it seeks a fair and just division, taking into account the unique circumstances of each case.

Case-by-Case Basis: The courts assess each case individually, ensuring that the division reflects the specific dynamics of the marriage and the needs of both parties.

Classification of Assets and Liabilities

The first step in this process is distinguishing between marital and non-marital assets:

Marital Assets include properties, assets, and debts acquired or incurred during the marriage. It's worth noting that even if an asset is in one spouse's name, it can still be classified as marital if acquired during the marriage.

Non-Marital Assets: Assets acquired before the marriage or those received as gifts or inheritance during the marriage typically fall into this category. They are usually exempt from division.

Determinants of Equitable Distribution

A host of factors play into the court's decision-making process:

Duration of the Marriage: Longer marriages might see a more balanced division, especially if one spouse sacrificed career opportunities for the family.

Economic Circumstances: The financial position of each spouse, both current and prospective, can influence decisions, ensuring that neither party is left in undue hardship.

Contributions to the Marriage: This isn't limited to financial contributions. Homemaking, childcare, and supporting a spouse's education or career can be pivotal considerations.

Wasteful Dissipation: If it's found that one spouse recklessly squandered marital assets, especially with the knowledge of an impending divorce, the court might adjust the distribution accordingly.

The Role of Prenuptial and Postnuptial Agreements

Such agreements, if valid, can significantly influence the distribution process:

Predetermined Division: These agreements can stipulate how assets and liabilities will be divided, and courts generally respect these arrangements unless they're deemed grossly unfair.

Protection of Specific Assets: One can safeguard certain assets from division, especially if they hold sentimental value or are linked to family inheritance.

The Essence of Equitable Distribution

At its core, equitable distribution seeks to ensure a just and fair division of marital assets. It's imperative to underscore that "equitable" is not synonymous with "equal." The aim isn't necessarily a 50-50 split but a distribution that reflects both parties' circumstances, contributions, and needs.

Classification of Property: Marital vs. Non-Marital

One of the first steps in the equitable distribution process is to classify properties as either marital or non-marital:

Marital Property encompasses assets and liabilities acquired or incurred during the marriage. It includes, but is not limited to, real estate, retirement accounts, debts, and even intangible assets like business goodwill acquired during the marital period.

Non-Marital Property: Assets and liabilities that a party brings into the marriage or acquires as a personal gift or inheritance usually fall into this category. However, it's crucial to note that certain actions, like co-mingling funds, can transform non-marital assets into marital assets, subjecting them to division.

Factors Underpinning Equitable Distribution

Florida courts don't distribute assets based on a set formula. Instead, they weigh various factors to determine a division that embodies the ethos of fairness:

Duration of the Marriage: A longer marriage often implies intertwined finances and mutual contributions, which can influence the distribution.

Economic Circumstances: Each spouse's financial standing, earning capacities, and future financial prospects play a pivotal role in the distribution decision.

Contribution to the Marriage: Courts consider non-monetary inputs beyond financial donations. This includes homemaking, raising children, supporting a spouse's education or career, and even efforts to enhance marital assets.

Wasteful Dissipation: If it's found that either party intentionally wasted or destroyed marital assets, especially after the divorce filing or upon learning of it, this can significantly impact their share.

The desirability of Retaining an Asset Intact: In cases where dividing an asset would destroy or significantly reduce its value, courts may award it to one spouse entirely, compensating the other spouse with other assets.

When it comes to the marital home, there are several possible outcomes:

1. Selling the Home and Dividing the Proceeds: Often, this is the most straightforward solution, especially if both parties want to move on and neither can afford to maintain the home alone.

2. One Spouse Retains the Home: One party might wish to keep the home, especially if minor children are involved. This often requires refinancing the house and buying out the other spouse's interest.

3. Co-Ownership: Though less common, some ex-spouses decide to co-own the home, especially if it's in the best interest of their children.

Factors Influencing the Decision

A Comprehensive Look at Influential Factors in Property Division Decisions

In divorce proceedings, the division of the marital home is one of the most emotionally charged and complex issues. Several factors interplay in the court's decision-making process, or the consensus reached between the spouses. Let's delve deeper into these determinants:

Prioritizing the Well-being of Children

The well-being and best interests of minor children invariably take precedence in the court's considerations:

- Stability: Courts recognize the importance of providing a stable environment for children. Retaining the marital home can offer a semblance of continuity and familiarity during an otherwise tumultuous period.

- School and Social Considerations: The proximity to schools, extracurricular activities, and the children's social circle can influence decisions. Uprooting children from their current school or community may not be in their best interest.

- Child's Preference: Depending on their age and maturity, children might have a say in where they prefer to live, which can weigh into the decision.

 Assessing Economic Viability

The financial implications of retaining the marital home are paramount:

- Feasibility: Beyond the immediate affordability of mortgage payments, courts will assess if a spouse can handle other associated costs like property taxes, insurance, and maintenance.

- Future Financial Prospects: It's not just about current economic standing. The court might consider each spouse's future earning potential and financial security.

- Equity in the Home: Both parties' equity in the house can play a role, primarily if one party seeks to buy out the other's share.

 Evaluating Contributions and Involvement

The involvement of each spouse in the home's acquisition, upkeep, and enhancement is another crucial factor:

- Financial Investment: Courts will look at who made the down payment, handled the mortgage payments, and how the home was financed.

- Maintenance and Upgrades: Beyond monetary contributions, efforts put into maintaining the house, making improvements, or undertaking significant renovations can influence decisions.

- Emotional and Time Investment: The home is more than bricks and mortar. Courts might consider the emotional attachment, time spent, and memories created by each spouse in the house.

The division of the marital home is a multifaceted issue, shaped by many factors. A holistic understanding of these considerations ensures that the outcome aligns with fairness, practicality, and, most importantly, the welfare of involved children.

Preparing for the Decision

To ensure that you're well-prepared for any outcome:

Seek Legal Counsel: It's always advisable to have a seasoned attorney who can provide guidance tailored to your unique situation.

Understand Your Finances: Know your financial standing, assets, liabilities, and what you can afford post-divorce.

Consider Future Needs: Consider where you want to be in the next 5-10 years. This foresight can guide your decisions regarding the marital home.

FAQ: Keeping the House in a Florida Divorce

 1. What is equitable distribution in Florida divorce cases?

Equitable distribution is Florida's legal approach to dividing marital assets and liabilities during a divorce. It aims to ensure a fair and just division, which doesn't necessarily mean an equal split.

 2. Does equitable distribution mean a 50-50 division of the marital home?

No, equitable does not always mean equal. The division is based on what's deemed fair, considering various factors like the length of the marriage, economic circumstances, and contributions to the marriage.

 3. How does Florida differentiate between marital and non-marital Property?

In Florida, properties acquired during the marriage are typically considered marital Property. In contrast, properties obtained before the marriage or through gifts or inheritance are classified as non-marital Property.

 4. Can I keep the house after the divorce?

It depends on several factors, including the best interests of minor children, the economic circumstances of each spouse, and contributions towards the home. The court will consider these and other factors to determine who gets the marital home.

 5. What if both spouses want the house?

If both parties desire to keep the house, the court will evaluate various factors to decide. These include the welfare of any minor children, the economic situation of each spouse, and each party's contribution to the home.

 6. Can I get the house if I primarily paid the mortgage?

While financial contributions like mortgage payments are considered, they are just one of many factors. The court will also look at non-financial contributions and the overall welfare of all involved parties.

 7. What happens if neither spouse can afford to keep the house?

In cases where neither spouse can realistically maintain the home post-divorce, the court may order the house to be sold and the proceeds divided between both parties.

 8. How do prenuptial and postnuptial agreements affect the decision on the house?

If a valid prenuptial or postnuptial agreement specifying the marital home's division is in place, courts will generally uphold it unless it's deemed grossly unfair.

 9. Can I ask for the house in exchange for another asset?

Yes, spouses can negotiate asset division. For instance, one might keep the house in exchange for relinquishing rights to another significant asset, like retirement accounts or other real estate.

 10. If I move out of the house during the divorce proceedings, do I lose my rights to it?

Moving out doesn't mean you forfeit your rights to the marital home. However, decisions about the home's temporary use during divorce proceedings might be influenced by who resides there.

About the Author

Antonio G. Jimenez, Esq.

Managing Attorney and Founder


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