Do I Give Up My Rights to My House if I Leave in a Florida Divorce?

Written by: Lenorae Atter, Attorney at Law

1389111_home.jpgAs a Jacksonville divorce lawyer, I am often asked by clients whether they give-up their rights to their home if they move out. Often, when couples decide to divorce one of the parties will want to move out the home and clients are generally afraid that if it’s him/her then rights to the home have been given to his/her spouse. In a Florida divorce, rights to marital property and assets is not determined by possession, but by when the property was purchased and possibly a couple of other factors. Property, assets and debts are normally divided in equal shares to the parties, unless there are reasons not to equitably divide. Florida is also a no-fault state, meaning that it does not matter who did what, the property still has to get split.

In a Florida divorce, property that was purchased after the date of marriage is marital property and subject to equitable distribution. For example, Amy and Ben get married and a month later purchase a home. Ann and Ben do not have kids and live in the home together for fifteen years and pay down the mortgage to a point that there is equity of $50,000 in the home. Ann and Ben decide to divorce and Ann moves out before the divorce is final. Ben claims that Ann forfeited her rights to the $50,000 because she, in essence, abandoned the home when she moved out. Ann claims that the property and the asset of $50,000 is marital and should be divided equally by the parties. Generally, the court will require the home to be sold and the equity divided 50/50, regardless of Ann moving out before the divorce was final. If Ben wants to keep the home, then he may be required to pay Ann her one-half share and buy her out of the home.

The other question that typically arises is whether the spouse that stayed in the home gets any credit for monthly mortgage payments made after the date of separation. For example, same facts as above, but when Ann moved out she did not contribute anything to the marital home. Ben took over payment for all financial issues regarding the home and was paying $1,000 per month towards the home for one year prior to the sale. When Ben and Ann are told to sell the house, the court may award the equity to be divided 50/50 between Ann and Ben. However, the judge may also say that Ben should receive credit for his financial contribution to the home for the 12 months, therefore, the equity is $50,000 Ben is given $12,000 and Ben and Ann then divide the remaining balance equally. This result does not necessarily occur in a Florida divorce, but there is a possibility, given the facts of each case that it can be the result. There are a number of factors to consider when the court decides whether such a credit will be given to one of the parties.

The outcome for a Florida divorce is based on the facts of each case. Often, no two cases are exactly the same and it is important that you understand your rights and options when going through a divorce. You should speak with an experienced Florida divorce attorney to better understand the divorce process given your set of facts.