Under Florida divorce law, if you file for a divorce when you own a home the judge will require an “equitable distribution” of the martial assets and liabilities. The court will divide marital assets and liabilities 50/50 unless there are factors that would make an equal split inequitable. The first step in a Florida divorce when you own a home is determining if it’s marital or separate property. Only marital property/ debt is subject to equitable distribution by a court; separate property will remain the property of the spouse who owns it. This is typically a straightforward process; however, when it comes to division of the home it can get a little tricky. Therefore, you should seek the advice of a Tampa divorce lawyer for information about how your home may be distributed in a divorce.
Florida Divorce When You Own a Home – is it Marital or Separate Property
Generally, most income, assets, and debts obtained during the marriage is marital property. Property that was individually acquired prior to the marriage will be treated as separate property. Under Florida law, separate property is not subject to equitable distribution. However, separate property may be classified as marital property under various circumstances. For instance, if the deed has both parties as an owner it may be subject to equitable distribution. Comingling can also be grounds for separate property to be divided in a Florida divorce. See Farrior v. Farrior.
Comingling is an important consideration when filing for divorce when you own a home. Generally, when equal access to the separate property is granted to the spouse it may become marital property. See Amato v. Amato. Determining if separate property has been commingled with marital property is based on the specific facts of each case. Therefore, you should seek the counsel of an experienced Tampa divorce attorney for information based on your specific circumstances.
How Real Estate is Treated in a Florida Divorce
Divorce when you own a home can include property that is held as tenants by the entireties. If title is held as tenants by the entireties it will be presumed to be a marital asset. This will be true even for property that was acquired prior to the marriage. The party asserting a home held as tenancy by entireties is not marital property will have the burden of overcoming the presumption that it is marital property. On the other hand, real estate acquired prior the marriage that does not include the other spouse on the title will be presumed to be separate property, even if both spouses live in the property. See Abdnour v. Abdnour. In circumstances such as this, the spouse will typically need to show the home was purchased with joint funds to overcome the presumption of separate property.
Real estate that is determined to be separate property may still be subject to a partial distribution in a Florida divorce when you own a home. For instance, if marital funds were used to pay down the mortgage balance, the equity gained in the home will be subject to an equitable distribution. See Mitchell v. Mitchell. Additionally, when marital funds or labor are used to improve the property, the increase in value due to such expenditures may be treated as marital property and subject to an equitable distribution.
What Happens to the Mortgage in a Florida Divorce
Normally, in a divorce when you own a home and the property is not sold as part of the case, one spouse will be required to make the monthly mortgage payments. However, if the spouse required to make payments fails to pay, both parties may still be liable to the bank. If both parties signed the promissory note, the divorce settlement will not abolish a spouse’s obligation to the bank. The bank is not a party to the divorce case and did not consent to any such agreement. Instead, the spouse will need to seek indemnification from the party required to pay under the divorce settlement agreement.
When drafting divorce settlement agreements for a Florida divorce when you own a home, your divorce law firm should pay special attention to any clauses regarding a sale of the property or assumption of the mortgage debt. For instance, in McDonald v. McDonald, the former wife sought to force a sale of the property due to the ex-husband’s failure to pay the mortgage, as required by the settlement agreement. The court denied the ex-wife’s request for a forced sale because the conditions triggering the right to force the sale were not properly drafted in the settlement agreement.
Tampa Divorce Law Firm
If you are contemplating filing for divorce and are concerned about keeping your fair share of the assets call us today to speak with divorce attorney in Tampa. Our divorce lawyers have years of experience helping people with their divorce and child custody disputes. Every divorce is different, and our vast experience allows us to cater our services to each client’s individual situation. Whether a couple mutually agrees to the terms or are engaged in a fierce litigation, we can help. We are available 24 hours a day, 7 days a week and offer a free initial consultation. Call us today at 800 990 7763 to speak with a divorce attorney in Tampa.