Written by: Lenorae Atter, Attorney at Law
As 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.
A marital home is property to be divided in a divorce? Truth. A marital home, if purchased during the marriage, is a marital asset or property that is subject to equal division of marital property, assets and debts. Often, if one party remains in the home and the court orders the sale of the home, then the one living there and paying the mortgage gets a credit for said payments. However, that is not always the case, but can be a negotiating tool when going through a divorce.
If I move out of the home, then the home has to be sold since we don’t agree who will live there? False. The home may be sold, but does not have to be sold in most situations. First, if there are minor children, then typically the party given majority time-sharing has first right of refusal to the home because it helps keep stability for the children. However, if that spouse cannot afford the home, then it may be awarded to the other party or a sale may be forced by court order. Also, if neither party can afford the home alone, then the court may require the home be sold. If the house is awarded to the spouse with the minor children, then often the house must be sold once the youngest child turns 18 or graduates from high school, whichever is later. This keeps the home available for the stability of the children, but also does not award it and any proceeds associated therewith to the majority time-sharing parent. If that spouse wants to keep the home, then she/he must buy the other party out.
When going through a divorce there are multiple moving parts regarding the marital home and other properties/assets. Understanding your rights and options is crucial to a successful divorce process, so you should speak with an experienced Florida divorce lawyer before taking that step.