Deciding to exit a marriage comes with a thousand questions and what-ifs. Often, the first question is, “who gets the house in a divorce?” This can be a complicated question heavily dependent on facts.
The Court Considers Affordability
When answering the question of who gets the house in a divorce, if the parties cannot agree the Court must consider several things. This includes which party can afford the home, title, financing, purchase information, whether the parties have children, among other factors. Often though, the financial positions of the parties are determinative of this issue. However, the Court is limited in what it can award. Absent an agreement; the parties may be forced to sell the home. This is a prospect that the parties may not even want. That being said, regardless of who may keep the home, both parties are entitled to their equity or value in the home. This could mean a cash payout or the value in keeping the home and remaining equity.
When Both Parties are on the Mortgage & Deed
When both parties are titled on the deed and the mortgage, it may be necessary to either sell the home or refinance it so that the non-homeowner spouse is not left “holding the bag” on a mortgage. Without doing so, the mortgage would still list the non-homeowner spouse to his/her detriment, even if the deed was transferred. This, in essence, would mean the party cannot sell the home but would be responsible for the mortgage. In addition, the party’s credit may be affected. The mortgage from their marriage could prevent them from obtaining financing for their own home, or otherwise negatively impact their credit and debt to income ratio.
Refinancing the House
To avoid this, a refinance would offer the parties the ability to remove one spouse from the mortgage and may allow the parties to “cash in” some equity to buy the other spouse out of their interest in the home. The first question in this scenario is whether one or both parties would qualify for a refinance. For this reason, parties must be strategic when one or both applies for a refinance. This is especially true while they are also divvying up other marital debts.
If both parties are on equal footing financially, the question becomes one of equity. Then, ultimately it is within the Court’s discretion to decide which party can keep the home. Often, the Court will consider whether the parties have children, whether the parties are exercising equal time sharing, or if one parent has majority time sharing, and where the children attend school. There are no bright-line rules on this issue, and it is up to the Court’s discretion.
Have More Questions About the House in a Divorce?
If you have more questions about who can get the house in a divorce, you may contact the Heskin Martinez Law Group. We have almost 40 years of combined Family Law experience and are dedicated to our clients. Use the contact form below or call us immediately at 407.403.5990.
Like all other aspects of our daily life, the Coronavirus/COVID-19 pandemic will affect family law cases in unprecedented ways. Rest assured that we will get through this together. Our firm is set up to work remotely and therefore, we can still actively manage your case and move it forward. However, adjustments on how we work are going to need to be made.
Here are some tips for managing your case during this time of crisis:
- First and foremost, follow the CDC’s guidelines. However, the Parenting Plans remain in place and must still be followed. In Orange and Osceola Counties there is already an administrative order addressing this issue. Failure to comply may result in sanctions and adverse rulings in your pending case.
- There will be limited access to the courts because the first priority is the safety of court staff and litigants. Judges will still be holding criminal and injunction hearings. For non-emergency family law issues, the judges are working with the local legal community to come up with creative solutions for hearings, such as video and telephonic hearings, agreements to limit the length of hearings and limitations on witnesses, etc.
- DO NOT take advantage of this situation to withhold the children or try to gain an upper hand in your case. When things have gone back to normal, judges will be examining your behavior during this difficult time and will take it into account in making decisions. (Continue reading below for Orange & Osceola’s emergency order governing this type of behavior).
- Rely on telephone calls, on-line meetings and other technology to communicate and keep your legal team updated.
- Use this time to get organized and get your discovery together or review the other side’s discovery to see if anything else needs to be requested. A lot of this information is available on-line so take advantage of any down time to get caught up and get this information together now so you are ahead of the game when the courts are back to normal.
Orange, Osceola, and Seminole County have issued some guidelines for dealing with this situation, and so has the Florida Supreme Court. As these guidelines evolve, we will be sure to update you.
- Florida Supreme Court
- Circuit and county courts are to continue performing essential court proceedings, including certain criminal hearings, juvenile detention hearings, temporary injunction hearings, Baker Act or Marchman Act hearings, and hearings on extraordinary writs to protect constitutional rights.
- In conducting all essential proceedings, courts shall utilize all methods practicable to minimize exposure to COVID-19.
- No court proceedings other than essential proceedings and those critical to the state of emergency or public health emergency shall be held in-person.
- The chief judge of each court shall cancel, postpone, or reschedule all non-essential hearings unless the judge determines such hearing can be conducted telephonically or through other electronic means.
- Notaries are permitted to swear witnesses in remotely, without the need for in-person contact.
- Orange & Osceola County
- Courthouses have been closed to the public with limited exceptions.
- Emergencies: Pro se litigants and attorneys will still be permitted into the courthouse to file emergency motions. In order for a judge to set a hearing on an emergency motion, according to CDC guidelines the judge must find that the issue is of such an essential nature that it warrants putting court staff and the general public’s health at risk to hold the in-person hearing.
- Conducting hearings or trials:
- Attorneys can agree to waive hearings, provide the judge with materials they wish him/her to consider and supply proposed orders to the judge for ruling on same without a hearing.
- Video conference call: attorneys can agree to waive live testimony and can present their arguments to the judge, allowing the judge to rule without an in-person hearing.
- For upcoming non-evidentiary hearings, attorneys can file motions to have the issue addressed telephonically or via written submissions.
- Uncontested divorces can now be finalized via mail instead of attendance at a final in-person hearing. (This has been the case in Seminole County for several years).
- The judges and courthouse staff are working behind the scenes to come up with creative solutions and are committed to remaining responsive to the community’s needs.
- Emergency Temporary Standing Administrative Order, No. 2020-07, dated March 24, 2020. (View the order here.)
- Pursuant to this order, unless otherwise prohibited by an existing order, each parent is prohibited from unreasonably restricting access of the child(ren) to the other parent.
- If there is a Parenting Plan in place, regular timesharing shall continue until the school district (or official governing the child(ren)’s school) announces the last day of school, at which time summer timesharing will begin. If a child’s school year has already ended, summer timesharing should begin immediately.
- Exchanges that were to take place at a school or daycare that is not currently open should be arranged between the parties. If they cannot agree, then the exchange should take place at police station or sheriff’s office closest to the school or daycare based on Google maps or something similar.
- If the Governor issues a “shelter in place” order, the parents should discuss where the child(ren) would be in the best position to meet school requirements, remain with siblings, and be safe. If the parents cannot agree, the parent with majority timesharing in a parenting plan (183 or more overnights) shall keep the child(ren) until the shelter in place order is lifted, at which time regular or summer timesharing, if applicable per the above, should resume. Makeup timesharing can be addressed with the court.
- Video-conferencing and phone contact as set forth in the Parenting Plan should be INCREASED during this time to alleviate fears and concerns of the child(ren) during this time.
- “Parents are strongly cautioned that unreasonable, hurtful, or destructive behavior may be severely and harshly sanctioned by the court, and the non-offending party may be awarded significant make up time, including summer and consecutive major holidays, and the Court may award attorney’s fees and costs to be paid to the prevailing party.”
- Seminole County
- All domestic violence and injunction hearings are suspended until April 15th. Any current temporary injunction order shall remain in place until the date of the rescheduled hearing. Any temporary injunction that may be granted between now and April 15th shall remain in place until the hearing on the permanent injunction is rescheduled.
- All family law adoptions, name changes, and uncontested divorces shall proceed as planned for the time being, except that attendance is limited to the parties and their attorneys only.
- For mediations, parties may attend telephonically and their attorneys can attend the mediation in-person on their behalf. The attorneys can sign any mediation agreement that is reached and the clients can confirm the agreement via email during the mediation.
As the landscape evolves, we will update you. As always, please do not hesitate to reach out to us with your questions and concerns.
Thinking about a home refinance during a divorce? Be careful. One of the biggest mistakes is a spouse inadvertently “gifted” their non-marital home to the spouse. Then, they want a divorce. How does this happen? When one spouse owns the home prior to the marriage, the other spouse gets added to the deed during the refinancing process. This converts the home to a marital asset.
For example, before marriage, Tom owns a home. Tom marries Susan, and Susan moves into Tom’s home. Tom decides he wants to refinance the home, which is only in his name and is therefore his non-marital property. The financing company insists that Tom add Susan’s name to the deed. So, he adds her. He inadvertently converted what was once his separate, non-marital property into a marital asset. Years later, Tom and Susan are divorcing. Now, Susan’s attorney argues that because Susan’s name is on the quitclaim deed, the home is a marital asset. It should be equitably divided between the parties. Unfortunately, the burden then shifts to Tom to show that he didn’t intend the home as a gift. This is very difficult to do unless the parties signed something at the time indicating it was not a gift. Therefore, Susan will most likely receive half the value of the home in the divorce.
Avoiding the Divorce Home Refinance “Gift Trap”
To avoid this possibility, ask the financing company if your spouse can just consent to the mortgage and not the deed when refinancing. If the financing company still insists on the deed, consult with a real estate attorney to make sure that doing so is absolutely necessary. If it is necessary in order to refinance, get your spouse to sign an agreement at the time of the refinancing. The agreement should state that the financing company is only adding the other spouse for the purposes of refinancing. The house is not a gift. If they won’t sign and you still need to refinance, send them an e-mail advising them that your intention is not to make a gift of the property. The adding of their name to the deed is only for refinancing purposes.
Do you have more questions about divorce home refinance or any other assets in a divorce? Please contact the Heskin Martinez Law Group. We have almost 40 years of combined Family Law experience and are dedicated to our clients. Use the contact form below or call us immediately at 407.403.5990.
One of the most common questions clients have when going through the divorce process is: “Who keeps the engagement rings in a divorce proceeding?”
Engagement rings given prior to the marriage are treated as gifts conditioned on marriage. Therefore, if the parties marry, the donee (i.e. the wife) gets to keep the engagement ring as her separate non-marital property. In other words, the engagement ring is not subject to equitable distribution (the division of marital assets).
However, if both parties separate before getting married, it is a different story. If the donee (i.e. the future wife) terminates the engagement, or if the parties mutually agree to end their engagement, the ring returns to the donor. The donor is the party who gifted the ring.
If for some reason a spouse gives the ring during the marriage, then it is a marital asset subject to equitable distribution. If a spouse upgrades the ring during the marriage, equitable distribution becomes trickier. However, in most cases, the engagement ring will be the separate non-marital property of the receiving spouse of the ring. This is since the ring is given prior to the marriage.
Do you have more questions about who gets the engagement rings in a divorce or any other assets? Please contact the Heskin Martinez Law Group. We have almost 40 years of combined Family Law experience and are dedicated to our clients. Use the contact form below or call us immediately at 407.403.5990.