Divorce: Who Gets the House?

Chadwick M. Layton, Esq.
September 3, 2018

Divorce & Family Law Column By:

Chadwick M. Layton, Esq.[i]

Harvey Waddell & Layton, P.A.

 

DIVORCE: WHO GET THE HOUSE?

            How do we address the marital home? This question arises in many divorce consultations.

            To properly answer this question, we must first determine:

  • Was the home purchased during the marriage?
  • Was a prenuptial agreement executed by the parties addressing how the home will be distributed in the event of divorce?

            If the answer to the first question is Yes, the home was purchased during the marriage and the answer to the second questions is No, there was no prenuptial agreement, then the home may be identified as a marital asset.  In most divorce matters, the home is a marital asset.  This means that the home is subject to equitable distribution between the spouses.

            Once the home is established as a marital asset as opposed to the non-marital property of one spouse, the outcomes narrow considerably: 

  1. The home may be sold and the proceeds split between the spouses as part of the divorce settlement. 
  2. The home may be transferred to one spouse alone with the non-recipient spouse receiving a larger portion of other marital assets to equalize the distribution.  This can be accomplished through the non-recipient spouse receiving a greater distribution of retirement accounts or other marital property.

            Another option is for the home to be appraised and the equity in the home earmarked for the higher earning spouse can be used to pay off an alimony claim.  For example, if the marital home holds approximately $150,000.00 in equity, the parties are initially entitled to $75,000.00 each.  However, if the husband has been the breadwinner throughout the marriage lasting over 13 years and Wife has not worked during the marriage.  Wife may have a strong alimony claim.   One solution for this type of alimony claim is to award lump sum alimony to the Wife of $75,000.00.  The vehicle to pay this alimony to Wife then becomes the 50% equity in home which is owed to Husband.  The end result provides Wife with sole ownership of the home and Husband owing no additional alimony to Wife.

            Professional divorce counsel will also look at and consider the other assets of the marriage and the tax implications for each major asset of the marriage to achieve a proper equitable distribution scheme.  If minor children are involved, a parenting plan and child support obligation will also be addressed.

 


[i] Chadwick M. Layton is a partner and shareholder at Harvey Waddell & Layton, P.A., located in downtown Lake Worth, he is also a member of the Florida Bar Family Law Section and the Susan Greenberg Family Law American Inn of Court of the Palm Beaches, further information is available at www.LaytonLawOffices.com  or (561) 585-4631.

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