What Happens When One Spouse Wants A Sale of Marital Home in Divorce
When charged with the task of fashioning an equitable distribution of marital assets and liabilities for a divorce in Florida, state statute requires that a wide variety of factors be considered. This post will focus on the specific mandate that the court take into account, and give appropriate credit for, any partial distribution of marital assets and liabilities that may have occurred since the date of filing. Specifically, when one desires a sale of marital home.
Sounds simple enough, right? For example, if your other half takes 20 large out of a joint account after flashing deuces, it only makes sense that he or she would have to fork back over half the dough once you receive your respective passport stamps from Splitsville. Unfortunately, much like the promise made on your wedding night of a marriage filled with passion and adventure, just because something seems so logical that you can’t help but wish it to be true it doesn’t mean it will end up the way you had hoped. What’s that saying? Fill one hand with wishes and the other with… well, you get the point.
The first obstacle lies with the possibility that you forgot to mention your ex’s withdrawal. Or perhaps you left out the fact you have continued paying the mortgage on the marital home despite having spent the past six months in your parent’s guest bedroom; an experience you are fairly certain will result in a mild case of PTSD. I hate to contribute to the possibility of further psychoses, but credits must be specifically pled in order to secure relief. And even if you were diligent and made a request for credits, if you were the party generally responsible for paying the mortgage or other household expenses during the marriage by virtue of being the primary breadwinner; your chance of obtaining credits for these expenses when it’s all said and done is about as likely as Anderson Silva reclaiming his spot as respected middleweight champ. In a nutshell, a party seeking to show credit for contributions has the burden of showing that such payment was from nonmarital funds or as a result of special efforts and did not constitute payment of marital expenses.
Moreover, specifically regarding your former soul mates raiding a joint account; if a marital asset is used by one of the parties out of necessity for the purpose of funding reasonable living expenses, that asset won’t be assigned to the culprit as part of an equitable distribution scheme absent a finding of misconduct. But don’t go crying into a bottle of Jack about how unfair life is just yet. Like many issues falling within the jurisdiction of a court overseeing divorce in Florida, reimbursement or credit for a party’s payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances.
The Sale of Marital Home in Florida
In the absence of a settlement agreement involving the sale of marital home, the court must consider a number of factors before determining the issue of credits or setoffs in its final judgment including: whether alimony is being awarded to the party in possession and whether the alimony is being awarded to cover, in part or otherwise, the mortgage and taxes and other expenses of and in connection with the marital home. One of these statutory determinants is also the catch-all provision of “any other factor necessary to bring about equity and justice between the parties”. This leeway allows a knowledgeable and skilled family law attorney the opportunity and creative license to better achieve a client’s goals.
The decisions you make today will set the tone for this new chapter in your life and it is important that you do what is necessary to best protect your interests, especially when it comes to the sale of marital home in divorce. As the great philosopher Ice Cube once said, check yo self before you wreck yo self.