Property Distribution

November 18, 2019

What are the Laws as to Staying in the Home in Family Law Cases?

Marital-Home-Florida-Family-Law As experienced family law attorneys, we get many questions from prospective and current clients about moving out of their shared home and their concerns about “abandoning” the home. As with any relationship, the answer is usually “it depends” but in reality, it’s important to realize that certain circumstances make the answer very simple, and courts quickly step in to help parties to deal with the temporary “split up” in the face of divorce.

Under Florida law, if you are married and residing in home that you purchased together, the marital home is a shared asset. Simply moving out of the house does not mean that you have abandoned the property. In instances where your ex spouse or potential ex spouse has been violent or threatened you with accusations (even false) of domestic violence that could have devastating impacts on your life, leaving the marital home is with good reason and would not result in you being viewed as an “abandoner.” In addition, courts recognize that when parties are going through a split up and tensions are high, getting out of the shared residence may be the best way for people to start working together to either co-parent or start the process of dividing to lead to resolution.

You do not lose your legal or property interest in the marital home, and while you should continue to make sure that the residence is continuing to be maintained, you can come to agreements with your separated spouse to divide the associated expenses to maintain the property. If you are “breadwinner” spouse or the spouse who traditionally has paid for the home, ensuring that you are maintaining the financial status quo while occupying another place to live, is a reasonable approach to continue consistency and showing your ongoing interest in the marital home.

June 26, 2018

With a Florida Divorce Pending, What Happens with the Property and Children Until Things are Finalized?

By Erlinger Family Law

Copurt-Order-300x242 Dissolving your marriage in the State of Florida , in many cases, is a lengthy process. Issues of property division and child timesharing cause couples to have conflicts without a great deal of guidance when they are attempting to finalize their plans moving forward. If you are divorcing in Florida, and specifically in the Jacksonville area, courts enter a standing family law order, once a divorce is filed with the clerk of court. This order provides some guidance on how couples should conduct themselves during the pendency of a divorce.

First, these orders prohibit one spouse from selling or hiding property, owned either individually or as a couple. This order will typically hold off a spouse from cleaning out the bank accounts, selling off personal or real property, or hiding assets that ultimately need to be divided in the divorce. One tip that is essential to moving forward is to take a copy of this order to your bank upon receiving it, so that your financial institution is aware of the current status of your marriage, and protections can be put in place for your money.

One exception to this provision to the taking of assets is when a spouse needs to sell an asset for usual household expenses or attorney’s fees. In these cases, your spouse may be able to sell an asset without your consent in order to make financial obligations. This is another area that may cause continuing conflict, and could be avoided through communication or representation by an experienced family law attorney.

June 9, 2018

Florida Family Law – If I Move Out of the Marital Home, Am I Abandoning My Family and Assets?

By Erlinger Family Law

Marital-Home-300x205 A question that commonly comes up in Florida Divorce consultations and cases is whether a client should move out of the marital home once one of the parties has filed for divorce. While many times spouses recognize that if there has been a divorce filing, eventually the time will come where they will no longer live together, this is a decision that should be made with planning and careful consideration.

The marital home is often the largest asset that the parties share, and its division in extremely important when considering how assets and debt will be allocated in a divorce case. In some cases, a spouse bought the house years prior to the marriage, or before even knowing the other spouse, in those cases, the house may be considered a non-marital asset. Conversely, many times, a home is purchased either right before or during a marriage, with the anticipation that the parties will live together as a married couple and ultimately a family, which would then make the house a marital asset. In Florida, when a married couple buys a home, the property is held in a “tenancy by the entireties”. Only married couples can hold property in this manner, and the deed will reflect that the parties are married at the time of purchase, and that is how the property is deeded to the couple. Being married is a prerequisite to the property being held in this manner. When the parties divorce, the “tenancy by the entireties” is destroyed, and both parties are joint tenants of the property. In both cases, the parties own 100% of the property, but when the house is sold, equity is divided in half, unless special circumstances permit that a party is awarded a more significant share of the proceeds.

A Florida Family Law Lawyer can advise you as to your legal rights prior to and during a divorce proceeding. Wood, Atter & Wolf, P.A. based in Jacksonville Florida has represented parties in divorce and post divorce proceedings since 1957. at Erlinger Family Law, we are On Your Side – At Your Side.

July 20, 2017

What Happens if My Former Spouse Stops Making the Mortgage Payments? Florida Family Law Issue

By Erlinger Family Law

Mortgage-Payment-300x200

When spouses separate and the Florida divorce is final, one party usually takes full ownership of the marital home. For one party to have full legal title to the, now, former marital home, the other party must sign a quit claim deed transferring his or her interest in the property to the other party.

Based in Jacksonville, Florida, the law firm of Wood, Atter & Wolf, P.A. is experienced in disputes and issues regarding the marital home and the failure to pay the mortgage payment. Certainly, any issue regarding the former marital home and the stability of the living environment should be addressed in a timely manner through legal representation when necessary.

If the spouse living in the former marital home is not the only spouse listed on the note with the lender (bank), then that possessing party must either refinance the note in order to remove the other spouse or obtain a new loan solely in the possessing party’s name. Usually, the parties will agree that whoever remains in the Florida marital home will refinance the home but the court can also order a party to do so or, at least, attempt to do so. It is ultimately the decision of the lender to agree to refinance the note and mortgage and remove one of the parties from the original agreement. Often, the lender will not agree to refinance the home; therefore the spouse who was awarded the home must obtain a new loan to pay off the existing loan. In order for a party to obtain a new loan, the party must qualify for such a loan according to each lender’s terms and requirements. Usually when a couple purchases a Florida home, the amount of the note and mortgage is based on individual’s income. Being recently divorced and not having that second income may make it difficult to obtain a new loan for the same house because the debt to income ratio that lenders look at and rely on has now changed.

July 15, 2017

What is a Florida Simplified Divorce? Married at First Sight TV Show

By Erlinger Family Law

Who watches the television show “Married at First Sight?” (I’m raising my hand if you can’t see me.) For all the fans out there, you know that Season 4 of “Married at First Sight” took place in Miami, Florida. Out of the three couples that married at first sight, one couple decided to get divorced at the end of the show. Well, that particular couple decided to get divorced after the honeymoon but the divorce did not take place until the experiment concluded.

As the experts say from the beginning of the show, the marriages are real and so are the divorces. Even though the couples may only be married for eight weeks, they still must go through the same steps as the general public in order to have their divorces finalized. Most likely, for Season 4 couples a simplified dissolution of marriage, as the Florida courts call it, is all that is needed to divorce the couples.

A simplified Florida divorce has a few requirements which each couple of “Married at First Sight” meets. I am sure the show screens their participants in accordance with these requirements. First, the couple must both agree to use the simplified divorce procedure. If one party decides that he or she does not consent to the simplified divorce procedure then the parties must follow the more traditional route for getting divorce.

September 23, 2016

Which Spouse Remains in the Home During the Pendency of a Florida Divorce?

By Erlinger Family Law

“I can’t take this anymore, we must get a divorce!” “Well, I’m not leaving.” This dialogue, to the extent there is any dialogue at all, is common prior to and during a Florida divorce case otherwise known as a Florida Dissolution of Marriage. This conversation then leads to the following question: Which spouse remains in the marital home during the pendency of a Florida divorce?

During a Florida divorce there are so many moving pieces and areas filled with uncertainty. Some divorcing couple move into separate residences prior to either party filing for divorce. Yet, there remains the other group of couples who are still living in the same home at the time of the initiation of the divorce proceedings. If one party does not voluntarily choose to move out of the shared residence, and the parties do not wish to continue to live together, who gets to remain in the home under the dissolution / divorce laws in the State of Florida? When real property or a leasehold is jointly titled to spouses both spouses have the right to the use of the owned or leased property, until a temporary order of exclusive use and possession or an ordered injunction placing restrictions on one spouse’s 1122707_divorce use is entered by a judge. If both parties remain in the home upon the filing of divorce, and neither party wants to budge on moving out of the home, the courts can be brought into the equation to have a neutral party make a ruling regarding who is to remain in the home. The court does not automatically get involved regarding who remains in the residence unless the appropriate motion is made by one of the parties to the divorce. The obligation of the parties and a Florida family law judge’s involvement in making a determination as to who is to remain in the residence is contingent upon a wide variety of factors. There is no simple answer to the question of who will stay and who will leave. The burden of proving that the other party should vacate the premises will be on the party making the motion. The court will consider the numerous factors and make a ruling based on Florida law and equity.

If you are leasing property together and the name of both spouses is on the lease both parties have the legal right to remain in the home, but that’s not always the ideal situation in the midst of a divorce. The lease is a separate agreement with yourself and the owner of the property. More likely than not the contract does not include a clause allowing you to dissolve the lease agreement as a result of your pending divorce. The obligation due under the contract will still remain. Even though you do not own the property in question the court still may rule on who has exclusive use and possession of the leased premises. While the court has the authority to make this ruling this is still an arrangement that should be discussed with the owner of the property so the appropriate changes can be made to the lease agreement and access can be restricted to the non-possessing spouse.

November 15, 2012

How to Deal With House Debt in a Florida Divorce

By Erlinger Family Law

Housing issues are a problem in most Florida divorces right now because a number of homes are upside down or underwater and in Florida, properties, assets and debts are to be divided equally. The courts struggle with this situation because even if the home is underwater it must still be factored into the equal distribution process. In addition, courts are aware that many people are now walking away from their homes and surrendering them into the foreclosure world. However, as a Jacksonville divorce lawyer, I prepare my clients for the house payments and associated insurance and related expenses because it is a factor in determining the outcome of the divorce and what debts may client may assume. Many people, even today, are hesitant to walk away from a house due to the impact it will have on credit and future purchases while trying to rebuild after a divorce.

Recently, a Florida appellate court evaluated this situation in Byrne v. Byrne, 3D10-2323 (Fla. 3rd DCA January 18, 2012). In the case, the parties had a condo that was $76,000 underwater. Originally, the Wife wanted to keep the home and make payments towards the property so as not to ruin her credit. She was initially awarded the home in the divorce, but was given no consideration by the court regarding the negative equity that she was taking ($76,000 would be owed upon sale). The trial court, in its initial decision, noted that there was a presumption that the Wife would actually turn the keys over the bank in foreclosure and would subsequently not lose the $76,000.

An appeals court is where one takes his/her case if the outcome of the initial case is factually or legally incorrect based on the evidence that is presented at court. Often, a transcript of the original trial will be necessary to preserve the evidence for the appeals court because the court transcript provides a formally written account of all statements made in the courtroom. Typically, a transcript is typed by a court reporter and since all witnesses are sworn in, their statements in court are sworn to statements that can be typed up and presented to the appeals court for review of all evidence.

October 17, 2012

Who Pays for Damage to a Home After a Divorce in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

When divorcing in Florida, there can be an issue regarding the marital home and dividing the property between husband and wife. The parties may reach an agreement about which spouse will take the property, for financial reasons or the like. This is quite common in a divorce, especially when the house is worth less than what is owed on the property, the parties do not worry so much about splitting the debt as they would in dividing equity. Working as a divorce lawyer in Jacksonville, Florida, I often have clients that are concerned about the condition of the home at the home of the division due to costs associated with any repairs that may be necessary.

Issues generally arise for spouses when one spouse has lived in the home during the divorce and the other is awarded the home at the end of the divorce. Issues may arise regarding the condition of the home and prompt questions of whether the party living in it previously is responsible or the spouse that was awarded the home. For example, in Husband decides to leave the marital home and file for divorce. Wife remains in the home while the divorce is pending and decides to ignore the home with regards to yard work, and decides to tear up the carpeting. Husband is awarded the home at the end of the divorce and moves back in to find that repairs of $2,000 are needed. Which spouse is responsible for those repairs?

July 30, 2012

In a Florida Divorce, Do I Get Credit or a Set-Off for Payments on My Home?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, the process can be grueling and determining how to divide property can be both emotionally and mentally challenging. Understanding the divorce process in Jacksonville and throughout Florida can be helpful so that you can focus on the issues at hand and deal with those aspects of your finances and property that are going to be most impacted by the divorce. A common issue, especially in today’s real estate market, is deciding what to do with the marital house. The marital home is subject to equal distribution, per Florida divorce law and as such, the property’s equity and debt have to be determined along with the division. In many divorces there is a question that arises regarding credits or set-offs of the marital home. Often, one party may believe she/he is entitled to such credits or set-offs for multiple reasons. The way to receive said credits is determined in either an agreement by the parties or by the court, if evidence supporting such a request is provided.

Florida Statute 61.077 establishes the law regarding one spouse receiving a credit or set-off for the marital property upon the sale of the home. In order to provide for a credit or set-off from the sale of the home, the parties may reach a settlement agreement or have a final judgment entered with the court that equally divides assets and debts and provides for such credits. Regardless of the judge making the ruling or the parties reaching an agreement, there are certain provisions that have to be determined in order for the party to receive the set-off or credit upon the sale of the home. The following factors are to be considered, and should most likely be addressed in the final judgment, whether by agreement or the judge’s ruling in a divorce trial:

July 23, 2012

Myth or Fact: Moving Out During a Divorce Means You Abandoned Your Home in Florida?

By Erlinger Family Law

Written by: Lenorae Atter, Attorney at Law

As a Jacksonville, Florida family law and divorce lawyer I get many questions regarding the martial house or home. The common question is whether moving out means abandoning the home and any rights to it. There seems to be a common myth in divorce situations regarding marital property and what you can and cannot do with it when going through a divorce and when you have actually given up your rights to the property or real estate in this case. So, fact or fiction, if you separate and move out of the marital home before the divorce, then you have abandoned the home and given up all rights to the home?

If I move out of the home then I have abandoned the home and any interest I may have in it? False. A home purchased during the marriage is considered property to divided in a Florida divorce. The home may be “under water” or it may have equity, but whatever it’s financial state, the property has to be divided. Simply leaving the home does not exempt any liability you may have, especially if your name is on the mortgage. Moving out also does not have any bearing on you getting a portion of the equity of the home if it were to be sold. If the home is not going to be sold, but kept by the other party, moving out does not impact your ability to be bought out from your portion of the equity.