Who gets the marital home in a Florida divorce?
One of the frequent questions faced by Florida divorce attorneys is: which spouse gets to keep the home in a Florida divorce?
The marital home is commonly the largest asset in a divorce. While the divorce is pending, meaning after divorce is filed, but before the divorce is final, the spouses are left in a gray area where either, or both, of them can stay in the marital home.
Usually, due to the emotional nature of divorces, the spouses want to live separately, but often can't agree on who should stay, or who should go. The idea that one spouse can stay, and use the home either temporarily while the divorce is pending, or permanently after the divorce is called "exclusive use and possession".
What does Florida law say about which spouse gets exclusive use and possession?
Florida law does not have a universal answer for this, meaning that there is no law that says the Wife, or the Husband has to leave, while the other has to stay. In order for one spouse to force the other out, one of several things can occur.
The quickest route to temporary exclusive use and possession is for a spouse to petition the Court for a domestic violence injunction, or a restraining Order. This remedy should be used ONLY by those who are either the victims of domestic violence, or have a well founded fear that they will become victims of domestic violence. A common tactic in Florida divorces is to file less than candid petitions for injunctions against domestic violence for the purpose of gaining exclusive use and possession of the marital residence. If discovered by the Court, there can be severe repercussion for those filing for a domestic violence injunction under false pretenses.
If there is no violence, one spouse can file a motion for exclusive use and possession with the Court, and set it for hearing. Florida divorce Courts will give one spouse exclusive use and possession of the marital home if doing so will serve a specific purpose. Commonly, the requirement of a "specific purpose" is met by grating exclusive use and possession to the parent who is the primary caretaker of the minor children so that the children's lives continue with as little interruption as possible. This has become so common in Florida divorces that some attorneys incorrectly assume that it is a foregone conclusion that the parent who has the majority of the time with the children automatically gets to remain in the house.
Some other examples from Florida divorce cases include a exclusive use and possession of a home that was specially modified for a handicapped spouse, or where one spouse could not afford the costs associated with relocating.
Generally however, there must be some grounds other than the fact that two spouses just don't want to live together anymore. In cases without any special needs, or minor children, the Courts look to whether or not there are circumstances that are creating a hardship that makes it unacceptable for both parties to live in the home, and then the Court evaluates whether or not one spouse's behavior has created the hardship.
The third method toe get exclusive use and possession is for the spouses to simply agree. This happens more frequently than most people would believe, but you should consult with a Sarasota divorce attorney before you make any decisions. having exclusive use and possession may limit the alimony a party can recieve, or may create some significant unanticipated costs, or conse quences with respect to time-sharing of minor children.