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Divorce & The Family Home: A Guide to Your Rights


As Florida family law attorneys who work to help our clients get through divorce with as little stress as possible, while also achieving their goals, one of the most important issues that clients have questions about are property division issues. This has become even more pressing given the current COVID-19 pandemic, as we potentially approach a housing crisis, and people become more and more concerned about their rights to the family home.

Florida Law & Issues That Can Arise

Florida law is clear regarding marital assets being distributed equally unless there is justification to do otherwise based on a number of factors that the court can take into account, such as the contribution of each spouse to the marriage, the duration of the marriage, the contribution of each spouse to assets, etc. However, questions can arise depending upon the particular circumstances of a relationship,  for example, if the mortgage is in one person’s name only, if one or both spouses lost their jobs, if the home is in foreclosure, if one spouse’s inheritance was used to make improvements on the home, etc.

The Name On The Mortgage Is Less Important Than Each Spouse’s Actions

When it comes to the family home, as long as it was acquired during the marriage, both spouses have an interest in it and any equity, regardless of whether only one spouse’s name is listed on the mortgage. However, the actions of one spouse do affect the rights of the other. For example, if one spouse fails to pay the mortgage without the other one knowing and this depletes the equity, the unknowing spouse could be entitled to a credit upon divorce. Regardless, failing to be named on the mortgage does not negate one person’s interest in the home if the home was acquired during marriage.

Initiating The Divorce Creates Certain Disclosure Obligations

While the mortgage company may only be obligated to communicate with the individual who is listed on the mortgage, not only is the other spouse entitled to know whether the mortgage payments are being made, but once that the divorce is initiated, regular disclosures need to be made as to whether the mortgage is being paid in full and on time, as failing to do so is considered to be a dissipation of the asset.

Other Rules: Moving Out Does Not Destroy Interest & You Cannot Sell The Home Without Consent From The Other Spouse

Another question that we frequently receive is whether it is safe to move out of the home, or if that would somehow destroy one’s interest in the home as an asset. Note that one spouse cannot destroy their interest in the home simply by moving out. Also note that neither spouse can sell or dispose of the property without the consent of the other spouse.

Contact Our Florida Family Law Attorneys Today for Assistance

Whether you have questions or concerns about custody, alimony, divorce, the family home, other assets, whether you should purchase another home after divorce, etc., our Tampa family attorneys are here for you. Contact HD Law Partners today to find out how we can protect your rights and serve your interests.



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