What happens to the Marital Residence in Divorce?

One of the first questions that New Horizons Law, P.A., Michael J. Costantino, Esq. is often asked from a potential new divorce client is who gets to stay in the house once I file for divorce.  The answer to that question isn’t always easy for a Florida Family Law Attorney to answer, but it is usually a major concern for the client. The answer is based upon the facts and circumstances of each case and varies based a number of different factors.

If the husband and wife are still residing together as a family unit, once one of them files a Petition for Dissolution of Marriage everything changes for both parties – if they have children together, then matters are even more complicated.  At New Horizons Law, P.A., Michael J. Costantino, Esq., recognizes that individuals who are getting prepared to go through the arduous process of a divorce case are nervous about where he or she is going to live, not only on a temporary basis while the divorce is pending before a Florida Family Law Judge, but also once that Judge grants a Final Judgment of Dissolution of Marriage.

The first question that has to be answered is whether the “marital residence” as it is referred by Florida Family Law Courts is truly a “marital asset” under Florida Statute § 61.075.  This statute defines which assets and debts are marital as well as which ones are non-marital.  For the purpose of this blog, we will only address the situation where the marital residence in entirely a marital asset.

Since Florida is an equitable distribution jurisdiction state, New Horizons Law, P.A., Michael J. Costantino, Esq. recognizes that our Family Law Judges are guided by principles of equity meaning that both parties are treated in a fair manner when dividing an asset as important as the marital residence.

If it is your desire to remain in the home while the divorce is pending, New Horizons Law, P.A., Michael J. Costantino, Esq. will file a Motion for Temporary Exclusive Use and Possession of the Marital Residence and we will go to court on your behalf to argue why you should be allowed to remain in the home.  At this hearing, the Family Law Court will consider factors such as which party has an alternative place to live, which party can afford to move to a new residence, whether there are children of the marriage and the children’s need to remain in the home and with which parent.  The Family Law Court will also consider what is likely to happen at a trial with respect to the marital such as will it be ordered to be sold and the equity divided, which party can afford the mortgage and other upkeep of the home.  These are all factors which have to be taken into consideration when answering the question of “will I be able to remain in the house after I file for divorce?”

Florida judges are provided with a lot of discretion in how they fairly divide marital assets and liabilities, so it is not easy for a Florida divorce attorney to advise you exactly what a judge will do with allocating your marital residence.  New Horizons Law, P.A., Michael J. Costantino, Esq. understands the importance on knowing where you will be residing once your divorce case begins and we will assist you in every possible manner.