If you are like most other individuals in Florida, your home is your most valuable marital asset. So if you are contemplating a divorce, one of your first questions will likely be, who gets the house, if anyone?
You may be concerned that your name is not listed on the deed of your marital home. However, in Florida, if you purchased the home during your marriage using marital funds, your home is presumed to be marital property, regardless of in whose name it is titled. This means that each spouse is entitled to half of the equity in the home (and responsible for half the loss if it has lost valued).
If you wish to keep the house and there is equity in it, you will have to find a way to make up your spouse’s fifty percent share of the equity in it. This may mean that your spouse will receive a larger portion of funds in accounts like bank and retirement accounts. Or, it could mean that you will pay your spouse a lump sum cash settlement or monthly cash installments. You may even agree that you will take on more of the marital debt to make up for the equity that you owe your spouse.
Another option may be that both of you keep the home, sell it at a future date and split the profit then.
If your home mortgage is listed in both you and your spouse’s names, you may need to refinance the home so that it is in just your name. This way, when your spouse purchases her own home, she won’t have problems obtaining her own mortgage. Keep in mind that the mortgage company will have to agree to refinance; a mortgage company is not bound by an agreement by you and your spouse.
Marital House and Children
If you have children, if possible, it may be beneficial for one parent to stay in the marital home so as not to upset their status quo. Obviously, a divorce can be traumatic for children, so as normal as you can keep their lives, the easier time they will have with your divorce.
Some parents even choose a “nesting” custody schedule, where the children stay in the same home, but the parents move in and out of the home, depending on whose time it is with the children. There must be a lot of trust between the parents and clear boundaries set for nesting to work. However, it is an option for those who both want to keep the house.
If you choose to litigate your divorce in court, the judge will choose which party gets to keep the home, or he or she will force you to sell it. Don’t give someone else this power. Instead, choose a form of alternative dispute resolution like mediation or collaboration. These processes allow you and your spouse to make these important life decisions for yourselves.
Adam B. Cordover is a collaborative family law attorney, American Bar Association author, Florida Supreme Court Family Law Mediator, and collaborative trainer.