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:
1) Whether one of the parties is being awarded the home and the reason that spouse is awarded the property;
2) Whether alimony is being awarded to the spouse getting the home and if the alimony is based on, in whole or in part, the expenses associated with the home, including the tax and mortgage;
3) Whether child support is being awarded to the spouse that is getting to stay in the house and whether the amount in child support is based on, in whole or in part, the expenses associated with the home, including the taxes and mortgage;
4) The value of the property to the spouse that is awarded exclusive use and possession of the marital home;
5) The value of the loss of use and occupancy of the marital home to the spouse not awarded the home;
6) Which spouse will have the right to claim the property and all related expenses as tax deductions each year for federal income tax purposes;
7) Whether there will be a capital gains taxable event that results to one or both parties upon the sale of the home; and/or
8) Any other factor necessary to determine justice and equity between the spouses.
If you are going through a divorce in Florida, understanding your rights and options is key to a successful outcome. Make certain to speak with an experienced divorce lawyer in your area in order to better understand the process.