Divorce and Your Home
By K. Dean Kantaras and Maurice Q. Thurman
The purchase of a home is an
important milestone in the lives of
many American families. The pride
of home ownership is also coupled
with the fact that real property offers
important financial benefits, which typically
appreciate over time. Not only is the
marital home an important financial asset
for many families, it also holds invaluable
sentimental value for many homeowners.
This is particularly true for families who
have children living in the household.
Therefore, it is common for a former spouse
to request to stay in the marital residence
after their divorce, rather than placing the
house on the market. Needless to say, the
question of which spouse will be able to stay
in the marital residence after a divorce is a
legitimate concern for many homeowners
facing divorce.
Florida courts that preside over divorce
cases are courts of equity. Historically,
the role of courts of equity is to apply the
principles of fairness to individual cases that
come before the court. Fortunately, when
it comes to the question of which spouse
will remain in the marital residence after a
divorce, the concept of equity also applies.
Each divorce case that goes before a court
is unique, however, judges must follow
guidelines that have been established by
Florida law over time. These guidelines
ensure that families will receive a fair
outcome when it comes to who will occupy
a marital home after divorce. Typically,
Florida courts will only grant a spouse
exclusive use and possession of a marital
residence if it serves a special purpose. And
when deciding whether a special purpose
exists, the court will consider whether it
is equitable and just to award exclusive
use and possession of the marital home
to a particular spouse, given the nature of
the case and the situation of each spouse.
Most commonly, exclusive use and
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it may affect their marital home should
also be aware of certain limitations that
exist when it comes to exclusive use and
possession. If, for example, exclusive
use and possession of a marital home is
awarded to a parent as a form of child
support, the award is typically limited
until the youngest child reaches the
age of majority or otherwise becomes
emancipated. Additionally, the parent
who is not awarded exclusive use and
possession is generally prohibited from
receiving the rental value of the property
during the other parent’s use and
occupancy of the residence, if the other
parent was awarded occupancy for the
benefit of the a child.
The marital home is an important family
asset that may be awarded to one spouse
or placed for sale after a divorce. For
more information on exclusive use and
possession of a marital residence, contact
K. Dean Kantaras, P.A. 9
EDITOR’S NOTE: K. Dean Kantaras has been
licensed to practice law in Florida for more than
24 years. Mr. Kantaras is the managing partner
of K. Dean Kantaras, P.A., a firm handling cases
in family law and immigration. Mr. Kantaras
is board certified in marital and family law by
the Florida Bar, a distinction held by less than
1 percent of all attorneys licensed to practice in
Florida. He is “A” rated by Martindale-Hubbell,
the highest possible rating. He is a member of
the Supreme Court of the United States, the
United States Court of Appeals for the 11th
Circuit and Middle District, The Florida Bar,
and the Clearwater Bar Association. Maurice
Q. Thurman, Esq. is an associate attorney at
the firm. He is a member of the Florida Bar,
Clearwater Bar and Canakaris Inn of Court.
Their offices are located at 3531 Alternate 19,
Palm Harbor, 34638, (727) 781-0000 and 1930
East Bay Drive, Largo, 33771, (727) 544-0000,
kantaraslaw.com.
LAARWT
K. Dean Kantaras, Esq.
possession of a marital residence is
awarded to a spouse as a part of a
timesharing arrangement for a minor
child. In this type of situation, the parent
who spends a majority of the time with
the child will be awarded exclusive use
and possession of the residence for the
benefit of the child. For example, in the
case of Martin v. Martin, the court ruled
that a former spouse who has majority
timesharing with a child may be awarded
the marital residence. 959 So. 2d 803, 805
(Fla. 1st DCA 2007).
However, Florida courts have also
held that an award of exclusive use and
possession of a marital home is not always
permitted. For example, there may be
situations when an award of exclusive use
and possession is too costly for a former
spouse. Although a couple may be able to
comfortably afford their household during
the marriage, this may not be possible after
the divorce, depending on the spouses’
finances. As the court recognized in the case
of Delgado v. Delgado, “…two households
cannot be maintained as cheaply as one.”
920 So. 2d 661, 663 (Fla. 3d DCA 2005).
Families considering a divorce and how
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