Divorce Attorney Scott J. Stadler

    • 03 JUN 14

    Who Gets The House After The Divorce?

    In the dissolution of a marriage, Florida is an equitable distribution state. This means that all marital property will be split equally unless there is some reason not to do so. For many couples, their house is their largest asset. Assuming that your house was purchased during your marriage, and that the home is held jointly between the spouses, there are several options regarding your house in a divorce. Let’s take a look at each one.

    Buyouts Can Determine Who Gets The House

    The first option is the “buy out” option. One of the spouses can purchase the other spouse’s interest in the home. This is usually done by way of refinancing the home with the mortgage holder so that you become the sole owner. You also become the sole tax payer, repairman (or woman) and mortgage payer. If the other spouse’s interest is unmanageable as a lump sum payment, an agreement can be made to complete the buyout in a certain number of years. Keep in mind however, that if a party remains on the mortgage until the buyout is complete in this situation, they could still be liable for the entire amount if the spouse staying in the home defaults on the mortgage. There are ways to contract around this, but you need an experienced attorney to make sure this is done correctly.

    Offset Scenarios Can Determine Who Gets The House

    Sometimes thinking outside the box can be beneficial in the distribution of marital property. Assume for the moment one spouse’s interest in the home and the amount needed for a buyout is $100,000. If there is other joint marital property, such as a boat ($70,000 value) and a motorcycle ($30,000 value), perhaps an agreement can be made that one spouse keeps the home and the other gets the equally valued marital property. Often this approach helps the parties reach a fair agreement that makes everyone reasonably happy. The husband gets to keep his toys, the wife gets to keep “her house.” This takes good accounting of the assets of the couple, and an open mind as to who should have what assets. Regardless of what decision is made in this offset scenario, be sure to have everything agreed upon by the parties well documented.

    No Solution To Determine Who Gets The House After Divorce? Sell and Share

    The next option to consider is to sell the home and share the profits. If there isn’t an emotional attachment to the home, if there aren’t children involved who may face a change in school district, or if financially one person can’t handle sole home ownership, this solution could be a great one and you both would be on your way to a fresh start. You need to be sure that the judge agrees with this solution prior to meeting with a realtor and listing the home. Otherwise it could open another, messier, can of worms! A well written settlement agreement can ensure this, so make sure your attorney is an experienced family law attorney.

    Another Solution Determining Who Gets The House – One Spouse Stays

    Another option is where one spouse stays in the home until certain criteria are met. Usually this involves staying in the house until the youngest child reaches the age of eighteen or nineteen, or until the spouse who stays gets remarried. The judge may actually order this arrangement if it is in the best interest of the children. If alimony is appropriate, it may be directed to paying or helping to pay the mortgage, taxes and upkeep. In using this solution you must anticipate issues such as what happens if the ex-spouse wants to move, or if a boyfriend or girlfriend moves in? This solution also requires specifically documenting who is responsible for paying the mortgage, repairs, taxes and maintenance. The agreement should also address what will happen once the criteria are met – may the other spouse purchase the interest and move back in? Or will the house be sold and any profits split? Exactly what arrangements will be made should be anticipated and decided.

    Rotating Residences To Determine Who Gets The House

    Lastly, there is the option that the child(ren) can stay in the home and the parents rotate in and out with their visitation schedule. This may sound like a crazy idea at the onset, but it could provide needed stability for the child(ren). They would be staying in one place, sleeping in their own beds every night, having their own things around them all the time (no leaving that nighttime-required stuffed moose at the other parent’s house). It creates a very stable environment for the children, but it does take effort on the part of the parents. If the parents can work this out, it might be best for the children. Again, the mutual decision would need to be made and well documented regarding the responsibility of the mortgage, repairs, taxes and maintenance.

    The Judge Has Final Authority Over Who Gets The House

    If no agreement has been reached, or if the judge determines that the agreement does not equitably divide the assets or is not in the best interest of the children, the Judge has the ability to change the distribution of the property. And unlike child custody, alimony, and child support, the decision on the distribution of marital property, including the home, is final; it cannot be modified or changed.

    There are other considerations in determining the property settlement, such as debts, pensions and tax implications, but often the house issue is a big stumbling block. With so many options available, you should be able to find one that is acceptable to both sides.

    Be very sure that your attorney is well versed in all these options, and is one who will work with you to find the best solution for all involved. An experienced, dedicated family law attorney is your best choice when so much is on the line.