When a couple goes through a divorce the court will order an “equitable distribution” of the martial assets and liabilities. Generally, the court will divide the marital assets and liabilities 50/50 between the couple. However, if there are factors that would make an equal split inequitable the judge will deviate from 50/50 division. See Florida Statute 61.075. Therefore, if you are filing for divorce when you own a home the property may be subject to equitable distribution.
The first step a tampa divorce attorney typically does when preparing a case is to classify each asset and debt as either marital or separate property. For instance, if filing for divorce when you own a home, your divorce lawyer in Tampa should review the details to determine if the home is 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. Marital property is typically all debts and property acquired jointly during the term of the marriage. However, there may be exceptions that apply, you should speak with a divorce lawyer in Tampa to see if any exceptions are applicable to your particular situation.
Divorce When You Own a Home as Tenancy by the Entireties
If filing for divorce when you own a home you should review the deed to determine how ownership is recorded. Under Florida Statute §689.115, when a married couple jointly purchases a home or other personal property it is presumed that the property will be held as a tenancy by the entireties. In a tenancy by the entireties, the property is owned by the marital union, rather than by the individual spouses. Each party to the marriage will have a half interest in the marital union, which in turn owns the property.
Parties to the marriage should jointly share any profits or liabilities from property held as a tenancy by the entireties. Further, neither spouse can transfer their interest in the property without the other spouse joining or consenting to the transfer. Additionally, a creditor of one spouse cannot encumber property held as a tenancy by the entirety unless both spouses agree.
Divorce When You Own a Home that is Homestead
Additional considerations should also be paid to property that is classified as homestead under the Florida Constitution. If filing for divorce when you own a home that is registered as homestead additional steps may be necessary to complete the process. Property which is properly designated as homestead is exempt from levy by creditors and may also benefit from reduced taxes. The purpose of homestead is to promote stability and welfare by allowing homeowners to continue to reside in their home despite financial misfortune and the demands of creditors to levy the property. See Public Health Trust of Dade County v. Lopez.
Homestead property held by a married couple may not be sold or encumbered unless both spouses consent. For instance, a mortgage cannot be placed on the property unless both spouses agree to it. Further, a spouse cannot give the homestead property to a third party in a will unless the other spouse agrees to the devise.
Homestead can be claimed by any person, regardless if the person is single or married. However, two married persons may only claim a single homestead unless they otherwise qualify for homestead and can prove there are legitimate reasons for living in separate residences. http://scholar.google.com/scholar_case?case=248034196562140433&q=738+so.+2d+522&hl=en&as_sdt=40006 See Law v. Law. To qualify for homestead protection the resident must be the owner of the property and occupy the property with the intention to remain there. Additionally,
- The homestead must be established before the levy of a judgment creditor
- The person claiming homestead must be a resident of Florida
- The protection is limited to ½ acre of contiguous land within a municipality. Property located outside a municipality is protected up to 160 acres of contiguous land.
Divorce Law Firm in Tampa
If you are contemplating filing for a divorce when you own a home and are concerned about keeping your fair share of the assets call us today to speak with Tampa divorce attorney. Our divorce lawyers in Tampa 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 specific situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. We are available 24 hours a day, 7 days a week and offer a free initial consultation to prospective clients.