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Who Gets The House During A Divorce

Posted by Gordon Shayne | Jul 30, 2024 | 0 Comments

How Will The Florida Divorce Judge Determine Who Gets The House?

            Most divorcing couples want to know how their biggest asset, the marital home, is going to be divided. Very likely, the house was acquired during the marriage and there is a mortgage associated with the house. Regardless of how the house is titled, if it was acquired during the marriage, the house will be a marital asset and then its value must be determined. The rules pertaining to how to determine the value of the house are extremely complicated and can be difficult to understand.

            Non-marital property, such as Real Property (House, Condo, etc.) is such property acquired by one or both parties prior to the marriage. When there a mortgage on the house, the house where the couple lived throughout the marriage, Florida law has a statute that uses a statutory formula that is based on the total reduction in the mortgage principal by marital funds for calculating the marital share of the “passive appreciation of nonmarital real property during the marriage.” Passive appreciation is the term used to say that the house went up in value during the marriage.

            You should also know what the term, “Marital Funds” mean. These are the funds that the parties earned through employment or receipt of income, regardless of source.

            It's a good idea to be prepared in your divorce case to address the paydown of any notes or mortgages that are secured by nonmarital real property and a portion of any passive appreciation in the real property that were actually paid down by, “Marital Funds.” Since the amendment to Florida's property law in 2018 that applies to all divorce cases, there exists a three (3) step process to determine the marital passive appreciation in nonmarital real property. Here are those general steps:

1.      Obtain a Valuation of the Real Property; (a date agreed to by the parties, the date of the filing of the divorce case or a date determined by the judge to be fair to both parties);

2.      Subtract the value of the real property on the date of the marriage, or if later, on the date the owner spouse acquired the property;

3.      Subtract active appreciation (such as renovations done and/or paid for by both parties) where marital funds were used;

4.      Subtract any additional encumbrances (i.e. contractor's lien or a tax lien by the County Tax Appraiser's Office) secured by the property during the marriage over the first note or mortgage on which principal is paid from marital funds.

 Contact a Florida Divorce Lawyer to assist you when confronting these legal issues.

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About the Author

Gordon Shayne

Gordon N. Shayne Family Law / Divorce Lawyer Phone: (904) 544-6855 Gordon N. Shayne's field of practice is devoted to Family Law/Divorce case throughout the State of Florida

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ABOUT GORDON N. SHAYNE

With over 35 years of experience, Mr. Shayne has had a legal career fighting for the rights of his clients while focusing his practice exclusively on Divorce, Child Custody and other Family Law Matters. Our services are available throughout the State of Florida.

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