Articles Posted in Property Distribution


When spouses separate and the Florida divorce is final, one party usually takes full ownership of the marital home. For one party to have full legal title to the, now, former marital home, the other party must sign a quit claim deed transferring his or her interest in the property to the other party.

Based in Jacksonville, Florida, the law firm of Wood, Atter & Wolf, P.A. is experienced in disputes and issues regarding the marital home and the failure to pay the mortgage payment.  Certainly, any issue regarding the former marital home and the stability of the living environment should be addressed in a timely manner through legal representation when necessary.

If the spouse living in the former marital home is not the only spouse listed on the note with the lender (bank), then that possessing party must either refinance the note in order to remove the other spouse or obtain a new loan solely in the possessing party’s name. Usually, the parties will agree that whoever remains in the Florida marital home will refinance the home but the court can also order a party to do so or, at least, attempt to do so. It is ultimately the decision of the lender to agree to refinance the note and mortgage and remove one of the parties from the original agreement. Often, the lender will not agree to refinance the home; therefore the spouse who was awarded the home must obtain a new loan to pay off the existing loan. In order for a party to obtain a new loan, the party must qualify for such a loan according to each lender’s terms and requirements. Usually when a couple purchases a Florida home, the amount of the note and mortgage is based on individual’s income. Being recently divorced and not having that second income may make it difficult to obtain a new loan for the same house because the debt to income ratio that lenders look at and rely on has now changed. watches the television show “Married at First Sight?” (I’m raising my hand if you can’t see me.) For all the fans out there, you know that Season 4 of “Married at First Sight” took place in Miami, Florida. Out of the three couples that married at first sight, one couple decided to get divorced at the end of the show. Well, that particular couple decided to get divorced after the honeymoon but the divorce did not take place until the experiment concluded.

As the experts say from the beginning of the show, the marriages are real and so are the divorces. Even though the couples may only be married for eight weeks, they still must go through the same steps as the general public in order to have their divorces finalized. Most likely, for Season 4 couples a simplified dissolution of marriage, as the Florida courts call it, is all that is needed to divorce the couples.

A simplified Florida divorce has a few requirements which each couple of “Married at First Sight” meets. I am sure the show screens their participants in accordance with these requirements. First, the couple must both agree to use the simplified divorce procedure. If one party decides that he or she does not consent to the simplified divorce procedure then the parties must follow the more traditional route for getting divorce.

“I can’t take this anymore, we must get a divorce!” “Well, I’m not leaving.” This dialogue, to the extent there is any dialogue at all, is common prior to and during a Florida divorce case otherwise known as a Florida Dissolution of Marriage.  This conversation then leads to the following question:  Which spouse remains in the marital home during the pendency of a Florida divorce?

During a Florida divorce there are so many moving pieces and areas filled with uncertainty. Some divorcing couple move into separate residences prior to either party filing for divorce. Yet, there remains the other group of couples who are still living in the same home at the time of the initiation of the divorce proceedings. If one party does not voluntarily choose to move out of the shared residence, and the parties do not wish to continue to live together, who gets to remain in the home under the dissolution / divorce laws in the State of Florida? When real property or a leasehold is jointly titled to spouses both spouses have the right to the use of the owned or leased property, until a temporary order of exclusive use and possession or an ordered injunction placing restrictions on one spouse’s 1122707_divorceuse is entered by a judge. If both parties remain in the home upon the filing of divorce, and neither party wants to budge on moving out of the home, the courts can be brought into the equation to have a neutral party make a ruling regarding who is to remain in the home. The court does not automatically get involved regarding who remains in the residence unless the appropriate motion is made by one of the parties to the divorce. The obligation of the parties and a Florida family law judge’s involvement in making a determination as to who is to remain in the residence is contingent upon a wide variety of factors. There is no simple answer to the question of who will stay and who will leave. The burden of proving that the other party should vacate the premises will be on the party making the motion. The court will consider the numerous factors and make a ruling based on Florida law and equity.

If you are leasing property together and the name of both spouses is on the lease both parties have the legal right to remain in the home, but that’s not always the ideal situation in the midst of a divorce. The lease is a separate agreement with yourself and the owner of the property. More likely than not the contract does not include a clause allowing you to dissolve the lease agreement as a result of your pending divorce. The obligation due under the contract will still remain. Even though you do not own the property in question the court still may rule on who has exclusive use and possession of the leased premises. While the court has the authority to make this ruling this is still an arrangement that should be discussed with the owner of the property so the appropriate changes can be made to the lease agreement and access can be restricted to the non-possessing spouse.

1304789_flooded_house_in_moravian_city.jpgHousing issues are a problem in most Florida divorces right now because a number of homes are upside down or underwater and in Florida, properties, assets and debts are to be divided equally. The courts struggle with this situation because even if the home is underwater it must still be factored into the equal distribution process. In addition, courts are aware that many people are now walking away from their homes and surrendering them into the foreclosure world. However, as a Jacksonville divorce lawyer, I prepare my clients for the house payments and associated insurance and related expenses because it is a factor in determining the outcome of the divorce and what debts may client may assume. Many people, even today, are hesitant to walk away from a house due to the impact it will have on credit and future purchases while trying to rebuild after a divorce.

Recently, a Florida appellate court evaluated this situation in Byrne v. Byrne, 3D10-2323 (Fla. 3rd DCA January 18, 2012). In the case, the parties had a condo that was $76,000 underwater. Originally, the Wife wanted to keep the home and make payments towards the property so as not to ruin her credit. She was initially awarded the home in the divorce, but was given no consideration by the court regarding the negative equity that she was taking ($76,000 would be owed upon sale). The trial court, in its initial decision, noted that there was a presumption that the Wife would actually turn the keys over the bank in foreclosure and would subsequently not lose the $76,000.

An appeals court is where one takes his/her case if the outcome of the initial case is factually or legally incorrect based on the evidence that is presented at court. Often, a transcript of the original trial will be necessary to preserve the evidence for the appeals court because the court transcript provides a formally written account of all statements made in the courtroom. Typically, a transcript is typed by a court reporter and since all witnesses are sworn in, their statements in court are sworn to statements that can be typed up and presented to the appeals court for review of all evidence.

Written by: Lenorae Atter, Attorney at Law

252256_nest_egg_ii.jpgWhen divorcing in Florida, there can be an issue regarding the marital home and dividing the property between husband and wife. The parties may reach an agreement about which spouse will take the property, for financial reasons or the like. This is quite common in a divorce, especially when the house is worth less than what is owed on the property, the parties do not worry so much about splitting the debt as they would in dividing equity. Working as a divorce lawyer in Jacksonville, Florida, I often have clients that are concerned about the condition of the home at the home of the division due to costs associated with any repairs that may be necessary.

Issues generally arise for spouses when one spouse has lived in the home during the divorce and the other is awarded the home at the end of the divorce. Issues may arise regarding the condition of the home and prompt questions of whether the party living in it previously is responsible or the spouse that was awarded the home. For example, in Husband decides to leave the marital home and file for divorce. Wife remains in the home while the divorce is pending and decides to ignore the home with regards to yard work, and decides to tear up the carpeting. Husband is awarded the home at the end of the divorce and moves back in to find that repairs of $2,000 are needed. Which spouse is responsible for those repairs?

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, the process can be grueling and determining how to divide property can be both emotionally and mentally challenging. Understanding the divorce process in Jacksonville and throughout Florida can be helpful so that you can focus on the issues at hand and deal with those aspects of your finances and property that are going to be most impacted by the divorce. A common issue, especially in today’s real estate market, is deciding what to do with the marital house. The marital home is subject to equal distribution, per Florida divorce law and as such, the property’s equity and debt have to be determined along with the division. In many divorces there is a question that arises regarding credits or set-offs of the marital home. Often, one party may believe she/he is entitled to such credits or set-offs for multiple reasons. The way to receive said credits is determined in either an agreement by the parties or by the court, if evidence supporting such a request is provided.

Florida Statute 61.077 establishes the law regarding one spouse receiving a credit or set-off for the marital property upon the sale of the home. In order to provide for a credit or set-off from the sale of the home, the parties may reach a settlement agreement or have a final judgment entered with the court that equally divides assets and debts and provides for such credits. Regardless of the judge making the ruling or the parties reaching an agreement, there are certain provisions that have to be determined in order for the party to receive the set-off or credit upon the sale of the home. The following factors are to be considered, and should most likely be addressed in the final judgment, whether by agreement or the judge’s ruling in a divorce trial:

Written by: Lenorae Atter, Attorney at Law

1194017_wooden_building_blocks-1.jpgAs a Jacksonville, Florida family law and divorce lawyer I get many questions regarding the martial house or home. The common question is whether moving out means abandoning the home and any rights to it. There seems to be a common myth in divorce situations regarding marital property and what you can and cannot do with it when going through a divorce and when you have actually given up your rights to the property or real estate in this case. So, fact or fiction, if you separate and move out of the marital home before the divorce, then you have abandoned the home and given up all rights to the home?

If I move out of the home then I have abandoned the home and any interest I may have in it? False. A home purchased during the marriage is considered property to divided in a Florida divorce. The home may be “under water” or it may have equity, but whatever it’s financial state, the property has to be divided. Simply leaving the home does not exempt any liability you may have, especially if your name is on the mortgage. Moving out also does not have any bearing on you getting a portion of the equity of the home if it were to be sold. If the home is not going to be sold, but kept by the other party, moving out does not impact your ability to be bought out from your portion of the equity.

Written by: Lenorae Atter, Attorney at Law

tug-o-war1.jpgIn a Florida divorce, regardless of fault, the marital property, debts and assets are to be divided equally. Florida divorce requires that marital items be equitably distributed through the court if the parties cannot otherwise agree on the division of assets, debts, and the like, with few exceptions. The one thing that often can be left out when couples try to divorce on their own is the division of a business. Yes, in Florida, if you start and own a business during the marriage, then that is a marital asset (sometimes a liability) that should be divided by the parties. However, it also means that there is another party to your divorce, the actual business itself, because the business has an overall interest in the outcome of the case.

For example Wanda and Hank have decided to divorce after twenty (20) years of marriage. About five (5) years into the marriage, Wanda started her own bakery, Wanda’s Treats, and it has been successful since it opened. Wanda is now more of a managing owner, than acting as lead baker so the business is self-running at this point in their marriage. Hank files for divorce and in his petition, requests that the business be equitably divided between him and Wanda. Normally, in filing for a divorce, the case will only list the parties as Hank and Wanda. However, since Hank wants part of the business, the business itself actually has a stake in the divorce and should actually be named as an additional party to the suit. When that occurs, Hank not only needs to serve Wanda with divorce papers, but also serve Wanda’s Treats’ registered agent, separately. Mathis v. Mathis, 2D11-298 (Fla. 2nd DCA June 15, 2012). By doing so, the business can actually have its own attorney as well to make certain that the business valuation is fair to the business and that any division is done to preserve the integrity of “Wanda’s Treats.”

Written by: Lenorae Atter, Attorney at Law

1242900_old_house_.jpgIn a Florida divorce, the parties often have a marital home that has to be divided by the parties regarding either the asset value or the debt owed. However, sometimes the house may simply shift ownership per a divorce agreement by the parties, especially when the home is underwater like most are in today’s economy. The shift normally occurs because the party that stayed in the home at the time of separation cannot afford to maintain the home after the divorce is final, but the other party can. As a Jacksonville divorce lawyer, I often receive questions from clients regarding what the home must be in at the time of transfer.

If possible, you want the divorce agreement or order to actually define the condition of the home and what necessary repairs must be done. It does not make sense that the party is returning the home in a better condition than how it was during the marriage, but it also should not be in worse condition. If the party with present possession does not have the ability to maintain the home, then it is unreasonable to expect the spouse to have the ability to fix in and all issues that were present during the marriage. Things such as lawn maintenance that was in place during the marriage should also be kept up. However, completely re-landscaping the yard to make it better looking is not a reasonable cost expectation.

Written by: Lenorae Atter, Attorney at Law

1064041_a_house_destroyed_by_the_flood.jpgA Florida divorce in today’s economy can be tricky given the financial circumstances in which many people find themselves. Though there is economic recovery, the fact remains that many people are still underwater when it comes to their homes or properties and Jacksonville, Florida is no different. In a Florida divorce, the assets and the debts accumulated during the marriage are equitably divided in accordance with Florida Statute 61.075. An equitable distribution of property and debt can often be unequal if there is a disparity in the incomes or there is more than one significant debt held by the parties, then dividing the responsibility for each can be challenging.

In Florida, most often the home is often ordered to be sold unless the parties have a minor child. Given the marketplace and the realities facing many people who are upside down on their home, equitably dividing house debt can be a challenge. The concern for many is that even if the house were to be placed on the market, there is no way to recover the actual amount owed, so a short sale would have to be approved. Therefore, the parties are on the hook for whatever portion is remaining as a set-off. Also, the concern is that if one party is to take the home, then there is a strong likelihood that at some point, that party will be living rent free in the home until kicked out by foreclosure, thus strapping the other party with an unnecessary debt.