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  • Writer's pictureJarbath Peña Law Group PA

Marital Home in a Divorce

Updated: Oct 13, 2023

By: Jarbath Peña Law Group

You may have many questions if you are in the middle of a divorce. It’s a stressful time, and you are looking for answers. That’s why it’s best to get counsel from a seasoned family law attorney like Fritznie Jarbath.

One of the most common questions we encounter surrounds what happens to your family home in a divorce. You might have questions like the following:

  • Can I keep the home, or do I have to sell it?

  • If I move out, do I give up my right to the house?

  • Can I force my spouse to move out?

Today, we’ll discuss these questions. But keep in mind that each case is unique, and if you’d like answers specific to your situation, contact Jarbath Peña Law Group today.

Can I Keep the Home, or Do I Have to Sell It?

As with many questions regarding divorce, the answer depends on your circumstances. First and foremost, you should know that Florida is an equitable distribution state. Some people think that equitable distribution means that all marital assets are split down the middle, i.e., divided 50/50. But this is not necessarily true. Instead of a split down the middle, Florida Statutes § 61.075 states that the court should begin by presuming an equal split. However, the court should consider several factors that could justify an unequal split. Let’s look at some of those factors.

Children Still Living at Home

Suppose you still have dependent children living at home. The courts lean heavily toward maintaining a stable home life for your children. This means that whichever parent is going to have primary custody of the children is likely the one that is going to continue living in the house. It also means that it is less likely that the courts will order you to sell the house.

Original Ownership PRIOR to Marriage

Another determining factor is whether or not the home belonged to one spouse before the marriage. In most cases, the courts will then rule that the home is considered that spouse’s asset before the marriage—and they will be allowed to keep it. Courts are hesitant to force a sale when the asset solely belonged to one spouse before the marriage.

But this is not a rule that is written in stone. For instance, suppose that Spouse A owned the home before they married Spouse B. If Spouse B spends years after the marriage contributing to the household finances to help pay the mortgage, then they, too, have equity in the home. Also, suppose Spouse B contributed to renovations and other improvements over the years, thereby increasing the value of the home. In that case, the court will likely consider Spouse B to have more of a share in the marital home.

The ideal scenario here would be for both spouses to work out a compromise as to who gets to keep the home. If not, the court could force you to sell it and equitably split the proceeds.

Spouses Want to Sell

Another scenario is if one or both spouses want to sell the home. In this case, the divorce filing should indicate that one or both spouses are asking the court to partition the property. This request must be included with your divorce filing. If granted, the court will force the sale of the house and distribute the proceeds equitably.

Buy Out

Another option is for one spouse to “buy out” the other spouse. This means that the spouse who desires to keep the house can buy out the other spouse’s 50% share of the home’s value. The statute enumerates these and other factors a court can consider when fairly distributing the marital home.

If I Move Out, Do I Give Up My Right to the House?

No. As a matter of fact, many attorneys will advise their clients to move out to avoid heated arguments. These arguments often cause both parties’ anger to escalate, making coming to a compromise about divorce terms much harder. It may also result in allegations of domestic violence, whether those allegations are true or not. Essentially, the method by which the court splits the marital home’s value between the spouses is not impacted by whether or not you are still living in the home.

Can I Force My Spouse to Move Out?

There are only two circumstances under which a Florida court may force one spouse to move out during a divorce. The first is if there is evidence of domestic violence or abusive behavior toward you or your children. If this is the case, you should seek an injunction or a restraining order. The second circumstance is if the home is exclusively yours. This means you purchased the home before the marriage, it is in your name only, and your spouse made no contributions to the home during the marriage.

Don’t Go It Alone!

As you can see, many factors affect whether you can keep your home or have to sell it and split the proceeds. This discussion can give you some guidance, but your lawyer can help you look at additional considerations.

  • What if one spouse keeps the house, but the other spouse is still on the mortgage?

  • If one spouse keeps the house, are the remaining assets split 50/50?

  • What if one spouse has caused destruction to the home and therefore depreciated its value?

To answer these questions and more, you need the help of an experienced family law attorney. At The Jarbath Peña Law Group, we understand the hurdles you face during your divorce. Our compassionate lawyers are committed to serving the people of Coral Gables and the surrounding Miami area throughout all stages of divorce and beyond. Don’t risk losing your home or your right to an equitable distribution of its proceeds. We have the answers if you have questions. Call today, and we will help you navigate through all of the legal issues regarding your home, child support, and the myriad of other trials you are facing. You can reach us at 305-615-1005 or through our online contact form. We look forward to serving you!

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