For many people facing the prospect of divorce in Florida, the disposition of the family home may be the most significant property distribution issue. Legal analysis regarding how the family residence will be handled in a Florida divorce depends on a wide range of circumstances. A common problematic situation occurs when one spouse lives in the family home during a pending divorce while the other party ultimately receives the home in a marital settlement agreement or divorce judgment.
When one spouse resides in the family home during the time the divorce is pending, the issue of financial responsibility for damage to the home during the divorce may arise. There may be situations where a spouse living in the home during a pending divorce intentionally permits or causes damage to the home because the spouse does not want to keep the asset. When the home has negative equity, the party in the home may be particularly indifferent or hostile to the idea of maintaining the family home.
Section 61.075 of the Florida Statutes provides that the initial position for dividing the marital assets is that they should be equal but that this may be affected by multiple factors including intentional destruction or waste of marital assets after filing the petition for dissolution or within two (2) years prior to the date the petition is filed.
The spouse who is in control of an asset during a pending divorce has a duty and responsibility to avoid “waste” by causing damage to the family home. When the spouse in control of the asset does not exercise appropriate care to preserve the asset, the other spouse that receives the house as part of the equitable distribution of property in a Florida divorce may be entitled to an offset.
The spouse that moves out of the family home during a pending divorce may be well advised to take photos of the condition of the property so that damage caused during the divorce can be established. If the spouse who is awarded the home did not reside in the home during the divorce process, it is also a good idea to take photos of any damage immediately upon moving back into the home.
If the negotiation process is still ongoing, the cost of repairs may need to be accounted for by adjusting the property division. If a martial settlement agreement has been executed or a divorce judgment has already been entered prior to discovering that the property had been damaged, a hearing may be necessary to have the judgment modified to compensate for the damage.
No matter where you are located, our experienced West Palm Beach divorce attorneys are just a phone call away. Even if you just have questions about property and debt distribution issues but have not decided to take action, we can provide the initial answers to help you determine the best possible approach to your difficult family law issues so call us today at (561) 429-3924.
