December 11, 2023

Who Gets to Stay in the House During Separation in Florida?

Divorce can be a difficult and emotional time, especially when it comes to deciding who gets to stay in the marital home. In Florida, several factors determine which spouse may remain in the marital home during and after the divorce proceedings. This article will examine Florida divorce law and outline the key considerations regarding possession of the marital home.

Whether you get to stay in your family home during your Florida divorce depends on issues like ownership rights, domestic violence, and agreements between spouses. With the help of a knowledgeable divorce attorney, you can better understand your options and legal rights regarding the marital property. Read on to learn how Florida divorce courts determine which spouse stays in the house.

Overview of Divorce Property Division in Florida

Florida is an equitable distribution state when it comes to divorce. This means that marital property, including the family home, is divided fairly between spouses. The court does not necessarily split all assets 50/50 – rather, it aims to divide property equitably based on factors like:

  • Length of the marriage
  • Economic circumstances of each spouse
  • Child custody arrangements
  • Contribution of each spouse to the marriage

The court considers all marital property and debts and attempts to distribute them in a just manner according to the specifics of each divorce case.

Does Florida Law Address Staying in the Home During Separation?

There is no direct Florida statute that dictates who gets to stay in the marital home during a divorce separation. Unless there are concerns about domestic violence or child welfare, the court typically won’t address possession of the home until the final divorce hearing.

This means that both spouses have an equal legal right to live in the marital home during the divorce process in Florida. Neither spouse can kick out or lock out the other spouse without a court order.

What Rights Does Each Spouse Have to the Marital Home in Florida?

During a divorce in Florida, one of the most important issues to resolve is the division of marital assets and debts through the process of equitable distribution. The matrimonial home is considered a marital asset, even if only one spouse’s name is on the mortgage and title.

In general, each spouse has equal rights to marital property under Florida law, regardless of whose name is on the title. So, how can one spouse get exclusive possession and use of the home during and after the divorce? There are a few potential scenarios:

  • Domestic violence – If there has been domestic abuse, the victimized spouse may get temporary exclusive possession of the home. The court can issue a restraining order granting the abused spouse the temporary right to live in the home.
  • Agreement between spouses – Spouses can agree to give one person temporary or permanent possession of the home. For instance, if there are minor children, the primary residential parent may keep the house.
  • Court order – If spouses cannot decide, either party can request a court order granting exclusive use of the marital home. The judge may consider factors like living arrangements, income disparity, tax implications, and more.
  • Separate property – If one spouse owned the home prior to marriage or inherited it, the home may be considered separate non-marital property belonging solely to that individual.

In contested cases, consulting an experienced divorce attorney is key to understanding options for keeping the marital house. There are steps one can take to gain exclusive possession.

How Do Spouses Decide Who Gets to Stay?

Ideally, spouses can communicate and voluntarily decide who remains in the home during the divorce process. Factors to consider include:

  • Who can best afford the mortgage and bills?
  • Who needs to stay near the house due to childcare or school?
  • Who will cause the least disruption to children’s routines?
  • Whose name is on the mortgage or title?
  • Who has greater ties like family/community near the home?
  • Who brought the home into the marriage?

If spouses cannot compromise, they can file for temporary relief and ask the court to determine possession of the home. Mediation is sometimes used to help estranged spouses reach agreement.

How Can One Spouse Gain Exclusive Use of the Marital Home in Florida?

If you want exclusive use and possession of the marital home during your Florida divorce, there are a few potential avenues:

  • File a motion – Work with your family law attorney to file a motion requesting exclusive use of the home. You must convince the judge that you should remain in the house rather than your spouse.
  • Obtain an injunction – If you have experienced domestic violence, you may seek an injunction for protection, ordering your spouse to leave the home.
  • Change the locks – In some cases, a spouse may change the locks to keep their partner out of the home if they believe they have a legal right to exclusive possession. However, it’s best to get a court order first.
  • Refinance mortgage – One spouse may be allowed to refinance or borrow against the home equity to buy out the other spouse’s interest.
  • Buy out spouse – If one spouse can afford to, they may buy out the other spouse’s share of the home’s equity. This will give them sole possession.

Your divorce attorney can advise you on the pros and cons of these options and the proper procedures for your situation. Ideally, you want an enforceable court order granting exclusive use and possession.

What If Both Spouses Want to Stay in the Home?

When both spouses want to remain in the family residence during separation, they may have to live together as unofficial roommates until the divorce is finalized. While emotionally difficult, courts expect adults to behave civilly and maintain households together temporarily.

However, if living together poses dangers or is completely untenable, spouses can:

  • Ask the court for guidance based on factors like domestic violence, child custody, or financial circumstances.
  • Agree to split time in the home, like each spouse alternating weeks or months living there.
  • Sell or rent the home and find separate temporary housing.
  • Explore early resolution through mediated settlement conferences.

How Is the Marital Home Divided or Sold After the Divorce?

Once the divorce is finalized, the marital home will be designated as either marital or separate property through equitable distribution. The final judgment will outline each spouse’s rights and interests. Some potential outcomes:

  • If the home is marital property, the judge may order it sold and profits divided.
  • One spouse may be allowed to buy out the other’s share if they can afford to.
  • The spouse living in the home may be ordered to refinance into their own name only.
  • If the home was separate non-marital property of one spouse, they will retain sole ownership.
  • The spouses may reach an agreement about dividing the home’s value or selling and splitting it.

Consult your divorce attorney to understand how the marital home will be divided and how sale proceeds get allocated after the divorce. Make sure your rights and interests are protected.

How Can a Divorce Lawyer Help?

Navigating possession of the marital residence during separation in Florida can be tricky. An experienced Miami divorce attorney can provide legal advice and insight on your options, including:

  • Guiding you through the process of seeking exclusive use of the home
  • Negotiating amicable solutions like alternating possession schedules
  • Crafting temporary relief orders regarding the home
  • Advising you on the law so you avoid missteps like unlawful eviction
  • Estimating your chances of being awarded the house in the final decree
  • Helping you reach a mediated settlement on the home when possible
  • Protecting your interests in the home as an asset to be equitably divided

Going through separation and divorce is never easy, especially when the marital home is involved. But the right divorce lawyer can help you make smart decisions and take steps to achieve the most favorable outcome regarding possession of the cherished family residence.