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Home Sweet Home: Exclusive Use and Possession of the Former Marital Home in a Florida Divorce

Marital Home in DivorceBy: Iman Zekri, Esq.

Equitable Distribution of Marital Property

“I’m not leaving, you’re leaving.” “This is my house, so you should be the one to leave.” “I’m not going anywhere.” “Neither am I.” For many couples in conflict, this argument sounds all too familiar. In Florida, when dividing property in a divorce, courts use an approach called “equitable distribution,” which generally means that marital property is divided equally, unless there is a justification for an unequal distribution. Florida courts use this approach in allocating the marital home in the final distribution of assets.

However, divorce cases can drag on for years before a final judgment is entered by the court. What happens to the former marital home in the meantime? Under what circumstances are Florida courts willing to award one party exclusive use and possession of the former marital home?

Florida Law Relating to the Distribution of the Marital Home

For starters, under Section 61.075(1)(h) of the Florida Statutes, a court may consider:

“the desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible.”

While Section 61.075 establishes how courts should allocate the marital home in the final distribution of assets, it offers guidance to courts as to who should have exclusive use of the marital home during the interim stages of a divorce.

Courts Require a “Special Purpose”

In Todd v. Todd, 734 So. 2d 537 (Fla. 1st DCA 1999), the Florida First District Court of Appeal held that an award of exclusive use and possession of the former marital home must serve a “special purpose,” such as providing a benefit for a minor child. The critical question for the court’s consideration is whether the award is fair given the nature of the case. In Florida, a court will usually award the primary timesharing parent exclusive use of the marital home until the youngest child reaches adulthood or the parent in residence remarries.

The appellate court in Lefler v. Lefler, 68 So. 3d 256 (Fla. 4th DCA 2010), went so far as to hold that a party is not required to specifically request exclusive use and possession of the marital home where such an award is deemed incident to child custody. Moreover, the court in Dufour v. Damiani, 231 So. 3d 486 (Fla. 4th DCA 2017), treated the ex-wife’s exclusive use of the former marital home and the ex-husband’s obligation to pay one-half of the mortgage as an aspect of child support, enforceable by the court’s contempt powers.

As the Fourth District explained in Zeller v. Zeller, 396 So. 2d 1177 (Fla. 4th DCA 1981), “although the failure to award exclusive possession of the marital home unto the custodial parent until all of the children attain majority or become emancipated would not always constitute error, such awards are so frequently ordered that they have become a generally accepted principle of the law of divorce.” The Zeller decision highlights that the “special purpose” standard articulated in Todd is usually satisfied where the best interests of the child require an award of exclusive use of the marital home to the parent with majority timesharing.

Preventing Further Disruption in a Child’s Life

The importance of the child’s best interests in making a determination regarding the distribution of the former marital home is most directly illustrated by the Pino v. Pino decision out of the Third District of Florida. There, the ex-wife argued that the trial court erred in permitting her and the parties’ two children to reside in the marital home for merely one year, after which the home was to be sold and the proceeds divided between both parties. The appellate court agreed with the ex-wife and found that the ex-husband’s desire to use the sale proceeds to pay off his debts did not justify uprooting the children from their home. The court reasoned that: 

“the breakup of their parents’ marriage is of course itself a severe trauma to young children; this additional physical and psychological dislocation should not be imposed upon them unless there is a very good reason indeed for doing so.”

Agency Partner and Therapist at Lifescape Counseling Services, Courtney A. Faunce, shares that “children need consistency and empathy from both parents. During a turbulent divorce, the consistency of not only living in the family home but also keeping routines, schedules, chores, and shared family activities are vital for children’s social-emotional development and overall wellbeing.”

A divorce disrupts the sense of safety and comfort for everyone involved. The mental, physical, and social development of a child is most vulnerable to attack, which makes preserving any semblance of normalcy essential in seeking to protect the child’s best interests. Florida courts have recognized the value of such stability by regularly granting the majority timesharing parent exclusive use of the marital residence.

In Zeller, the appellate court held that limiting the wife’s exclusive use of the marital home to a three-year period was erroneous. Given the ages of the two children and the desirability of preventing further disruption to the household, the court concluded that the wife was entitled to exclusive occupancy of the marital home until the youngest child reached the age of majority. Lifescape Therapist Lindsey Chudzik explains:

“Dislocating a child from their home will expose them to direct stress affecting their emotional, mental, physical, social and spiritual wellness, both short- and long-term. A child may develop feelings of guilt, loss, self-blame, resentment, or experience depressive and anxiety symptoms.”

Considering the Parents’ Financial Circumstances

In Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986), the court reviewed the parties’ finances before awarding the wife exclusive possession of the former marital residence. Because the court found that the husband “is financially able to provide adequate housing for his child without inordinate sacrifice on his part,” and the former wife was a housewife caring for the child full time, the court awarded the former wife exclusive occupancy of the home until the child reaches majority.

By contrast, in Coristine v. Coristine, 53 So. 3d 1204 (Fla. 5th DCA 2011), the appellate court affirmed the trial court’s decision ordering sale and partition of the marital home, rather than awarding exclusive possession to the wife, because the evidence revealed that the parties did not have the financial capability to maintain the residence.

Final Thoughts

Florida decisional law demonstrates that judges are sympathetic to the effects of uprooting a minor child from his or her longtime home. A request for exclusive use and possession of the former marital residence by one spouse is more likely to succeed when there is a minor child of the marriage, that child has resided in the marital home for most of his or her childhood, and the parties have the financial capability to pay the mortgage, taxes, and other costs associated with maintaining the residence. Lifescape Counseling Therapist Stacey Heidler:

“Children deserve to feel comfortable in their surroundings and any disruption to that can also cause problems or affect other areas of their lives, such as school or friendships. They need to feel that even though many things are changing, there are things that are going to remain consistent, which helps them remain focused and will help them adjust.”

Those needing assistance in divorce, marital, or family law issues may contact me at iman.zekri@henlaw.com or by phone at 239-344-1119.