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Who Gets to Stay in Marital Home during a Divorce?


Spouses often have emotional attachments to their marital home, due to the hard work that was needed to purchase it and its likely status as the most valuable asset they possess. The marital home takes on a new and greater significance if a divorce occurs as the parties try to decide present and future living arrangements, and whether the home should be sold. The ultimate treatment of the marital home is an area that can cause contention between divorcing spouses, especially if the mortgage payment is out of reach for one party’s income. Even the issue of who gets to stay in the home while the divorce is pending leads to disputes in some cases and requires court intervention to resolve. Typically, both spouses have a right to remain in the home. However, there are situations where a court might give one spouse an exclusive right to remain in the dwelling. Recently, tennis professional Serena Williams filed an emergency motion in her father’s divorce case requesting the home she owns, and the one in which the couple lived, be limited to her father’s use, and exclude entry to the soon-to-be ex-stepmother/wife. Determining the disposition of the marital home during the pendency of the divorce and following dissolution is a central matter that must be settled. The treatment of the marital home in the divorce process will be explored below.

While the Divorce Is Pending

Once the divorce is initiated, if not earlier, couples will frequently want to change the living arrangement so both parties do not occupy the same space. However, there may be disagreement about who should move out. Financial considerations or child care may be the motivating factor, but if the parties cannot agree, a judge will often be tapped to settle the matter. Regardless of who owns or has a legal right to live in the marital home, a judge can grant one spouse the exclusive right to use and possess the home. The result is the other spouse must move out pending the final divorce judgment, though this right can extend beyond the divorce case. Florida does not clearly establish when an exclusive right to stay in the marital home will be granted, but the parties must have evidence of more than just a desire to live apart. Court orders of this type are most commonly issued in connection with domestic violence, a parent who is the primary caregiver, or if the home is modified to serve a particular need, such as a disability. While the person ordered to vacate the premises does not lose property rights, he/she cannot enter the premises without permission, and the other party has the right to exclude entry.

Following the Divorce Order

Most homes that are owned are considered marital property in divorce, even if just one spouse is listed on the title/mortgage. This result occurs because marital funds are commonly used to pay for and maintain the home, which makes it a marital asset under Florida law. If the parties cannot agree on what to do with this asset, a court will decide and require the parties to do any of the following:

  • sell the home if neither party can afford to keep the house on one income. The proceeds of the sale is usually shared, though the percentage each receives will depend on what is most fair under the circumstance, e., short-term marriage or one party greatly contributed to the improvement of the home;
  • defer sale of the property to allow the party with most of the childcare responsibilities to remain in the home until the children reach adulthood; or
  • order one party to buyout the other if the person wishing to remain can pay an equitable settlement for the other party’s share.

Speak to a Florida Divorce Attorney

The ownership and possession of the marital home is just one of many issues that come up in divorce. Resolving these issues can often be done privately, with the help of an experienced divorce attorney, but if agreement is not possible, you need a dedicated divorce attorney to represent your interests in court. Tampa Bay’s All Family Law Group, P.A. handles all aspects of divorce, and can help negotiate a settlement or advocate for your rights in court.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+




All Family Law Group, P.A.
The law firm of All Family Law Group, P.A. provides legal services to the Florida cities including Tampa, Clearwater, Brandon, Riverview, Hyde Park, South Tampa, Ybor City, Northdale, Valrico, Gibsonton, Lithia, Mango, Palm River, Plant City, Seffner, Sun City Center, Wimauma, Apollo Beach, Ruskin, Temple Terrace, Carrollwood, Northdale, Westchase, Citrus Park, Town N Country, Thonotosassa, Lutz, Fish Hawk, New Tampa, St. Petersburg, Palm Harbor, MacDill Air Force Base and all of Hillsborough, Pinellas and Pasco Counties. We will also represent DIVORCE clients in Polk, Hernando or Manatee Counties.

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