What happens to the marital residence in a divorce when parties have minor children?  Then and Now

houseDivorcing is a difficult time, specifically when you have minor children and the marital home is now part of the equation.  Where will you and your children live?  Which Party will ultimately get the house?  Can the other Party get excessive use and possession of the home?  Can either of you afford to maintain the home?  Who pays the mortgage?

These are questions that we may be seeing a change in the near future.  The times are changing, and the Courts are slow to progress with the times.  Currently, as was recently quoted by the 2nd District Court of Appeal, “[t]he general rule is a trial court should award the ‘primary residential parent’ exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances.”[1] Special circumstances include the ability of the parties to meet their debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.  In most cases, the exception swallows the rule because it presumes that there is a primary residential parent when parties divorce.  Florida no longer has a typical primary residential parent, wherein the Court would decide that one parent’s home was better than the other parent’s home, and typically that would be the marital home if the parties combined income was sufficient to support such a ruling.

The law now in Florida awards “parental responsibility” to the parents as “shared parenting responsibility unless shared parenting responsibility is a detriment to the child.  Prior to the enactment of “parental responsibility” Florida Courts would award “custody” to a “primary residential parent” and the other parent received a visitation schedule.  Now the general rule is to award both parents timesharing based on the best interest factors enumerated in 61.13 (3).  Therefore, instead of choosing one parent over the other, the Court must make specific findings based on competent substantial evidence to limit one parent’s timesharing over the other parent’s timesharing as both parents have an equal opportunity of parenting, if you will.

This brings me back to the general rule of awarding primary residential parent exclusive use and possession of the marital home until the youngest child emancipates (turns 18).  Yes, in those instances where there is substantial competent evidence to limit one’s timesharing to that which was typically regarded as the primary residential parent then this rule would be typical.  However, the aforementioned questions are not so simply answered, as not only would the Court have to determine (based on competent substantial evidence) that it is in the best interest of the children (which requires considerations of all the factors under 61.13(3)) to limit one parent’s timesharing but the Court must also determine the debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.

If timesharing is awarded to a party equal to that which used to called primary residential parent, and the Parties’ combined finances are such that they can afford to meet all their financial obligations including child support, and all other obligations under the final judgement then yes this general rule still stands.  However, it may be more the exception to the rule than a general rule because more so than not the Courts (at least here in the 20th circuit) typically start the timesharing analysis at shared parental responsibility and equal sharing of timesharing. Then, the Courts balance both sides, by moving time from one parent to the other based on the factors in 61.13(3).

In today’s world in which we live, it is more typical than not, that both parents are equal caregivers and providers during the marriage and therefore should be equal parents under the law.  After all, parenting is a constitutional right.  Therefore, in order to get exclusive uses and possession of the martial home, you would also have to get an award of timesharing that is equal to that which used to be termed as a primary residential parent.  If the Parties’ timesharing is anything less than what used to be termed as the primary residential parent, then you may be ordered to sell the martial home.  Also, if the both parties cannot afford to maintain the martial home, regardless if the Parties have children, you will likely be ordered to sell.

[1] Coristine v Coristine, 53 So. 3rd 1204 (Fla. 2nd DCA 2011).

***Every case is different this article is not intended to be used as legal advise.  If you are faced with a similar legal issue, please seek the advise of an experience martial law attorney who can provide the legal advise you need.***

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