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Dividing the Marital Home

The home is one of the top concerns for most couples going through a divorce. Like other marital property, if the home was purchased during the marriage, it is considered marital property and subject to division. Like many other things in divorce, the parties may negotiate and agree as to how they would like the marital home to be divided. If the parties cannot agree, the court will decide how the marital home will be divided. There are three primary ways that a court can divide a couple’s marital home.
 

1) Sell the Home 
 

When a marital home is indivisible, the court may order the couple to sell the home and divide the proceeds. The court has three options for ordering the sale of property:
  1. A judicial sale by public auction.
  2. Private sale conducted by the clerk of court or a magistrate.
  3. Private sale based on the stipulation of the parties. 

When selling the marital home it is important remember and take into account fees from the sale, realtor fees, appraisal cost etc. 

2) Give the Home to One Spouse
 

Often with equitable division of a marital home, a spouse will arrange to give the home to the other spouse. However, when the receiving spouse acquires the home, they also acquire any debt associated with the home. This is a critically important point. The recieving spouse should first speak with their lawyer about whether or not they can afford to take on the debt associated with the home. If the mortgage is in both parties' names, the receiving spouse may have to refinance the house to remove the other spouse's name from the home. Additionally,  the receiving spouse will likely be required to pay one half of the equity value to the other spouse if they are awarded the marital home. This is an equalization payment, where the receiving spouse essentially buys out the other spouse's interest.
 

3) Allow One Spouse to Live in the House for a Term of Years (Assign Exclusive Use and Possession)
 

Occasionally, the court will grant one spouse exclusive use and possession to stay in the marital home for a term of years. An award of exclusive possession must serve a special purpose such as providing a benefit for a minor child. For example, if the court finds that selling the home may be traumatic for the parents’ young child, the court may allow a spouse and child to live in the home for a period of time before the house is sold. The custodial spouse living in the ex-marital home will continue mortgage, tax, and insurance payments on the property, but these payments can be deducted from their child support obligation. Exclusive use cannot continue indefinitely and will not extend after the youngest child reaches 18 or the custodial parent remarries. 
 

 Practice Pointer - What Happens if the Home Was Acquired Before Marriage?

A house acquired by one spouse before marriage and still solely titled in that spouse's name will be considered non-marital property and not subject to division via equitable distribution. However, if the house appreciated in value due to marital funds or labor, the house could be considered marital property and subject to equitable division. Improvements to the value non-marital home, such as building a pool or installing a new roof, or expenditures of marital funds towards paying off a mortgage does not transform the entire home into a marital asset; rather, it is only the appreciated value of the home that becomes a martial asset subject to equitable division.  

If you would not like the court to decide how the marital home is divided, you and your spouse may negotiate with each other and agree as to how you two would like to divide it. There are many options if you choose to go this route. Correspondingly, there may be many costs related to dividing a home. As a result, it would be best to speak with an experienced Orlando or Tampa divorce lawyer about how to handle the marital home in a divorce. 

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