Who Gets the Marital Home in Divorce

February 25, 2015

When a couple is divorcing, one of the most significant decisions is likely to be the determination of what happens to the couple’s home. A home is often the most valuable asset that a couple possesses, and deciding who gets it can have a huge financial and emotional impact.

Settlement Agreement

The best outcome in determining who gets the house is for the spouses to come to an arrangement, called a settlement agreement. One spouse can buy out the other spouse’s share in the house, perhaps paying for it by refinancing. The spouses can agree to sell the home and split the proceeds. Or, perhaps the couple owns enough property that a fair division can be made while allocating the entire house to one party.

Court Order

However, an amicable agreement between the spouses is not always possible. In that event, a court may decide how the house will be divided of, and has the authority to award the property to either spouse. When making such a decision, the court will take several factors into account. For example, the court may consider each spouse’s ability to afford the house—to pay for upkeep, taxes, mortgage, etc. The court may also order the sale of the home and then split proceeds.

If the couple has children, the court will often award the house to the parent who has primary custody under the parenting plan. Florida tries not to uproot minor children from their homes to preserve as much stability as possible. Alternately, the judge may split the equity in the home between the spouses but defer the sale until the children have left home.

Partition and Orders of Sale

In Florida, a divorcing spouse may wish to force division of the marital home. In that case, either spouse can file a civil action for partition, separate from the divorce proceedings. The result of such a suit will be either partition in kind or an order of sale.  Partition in kind means physically dividing the property among the co-owners. However, this is not usually feasible with regard to a marital home.

An  order of sale is used when the land at issue cannot be partitioned without unfairness to the owners. This is usually the case when dealing with a family home—it would be impracticable to physically divide ownership of a house between divorcing spouses. In an order of sale, the court orders the land to be sold at a public auction. The court then divides the proceeds of the sale between the spouses in proportion to their ownership interests in the property.

Nuptial Agreements

If a couple is worried about what would happen to property in the event of a divorce, nuptial agreements are useful. A couple may contract before marriage in a prenuptial agreement, or after marriage in a postnuptial agreement, to determine who will get property if they divorce. The court will honor these agreements unless they are grossly unfair.

Since determining who will get the family home in a divorce can have such significant consequences, it is important to get the advice of an experienced attorney to ensure the best possible outcome. Please contact  West Palm Beach family law attorney William Wallshein for a free initial consultation.