An issue I often get in a divorce case is when one spouse wants to keep the house because there is a minor child/children involved. While family law cases are all about finding a fair and just resolution for the parties, judges do have a lot of discretion and do have the power to award the house to one spouse. But what is the law that guides judges and by extension family lawyers practicing in this field?
Before 1988, no law in Florida dealt with the equitable distribution of the marital assets and liabilities. Judges made decisions based on the guidance they had from previous cases. For example, there is a case from 1980 out of the Fourth District Court of Appeals that states, "it is well established that a wife may be entitled to exclusive use and occupancy of the marital home...as a residence for herself and minor children." This was based on the stereotype that the women stayed home while the husband worked. By 1988 it was clear that a law was needed to be established to not only deal with the equitable distribution of the marital property but also stamp out some of the old-fashioned thinking.
Hence, in 1988 Florida statute 61.075 was created and a new law for equitable distribution was established in Florida. In this new statue, there is a specific section that deals with the marital home and minor children. The law calls for the equitable distribution of assets and debts and has a list of factors the court can consider when deciding to award an unequal distribution. One of these factors is the marital home when children are involved.
In making a judgment, the court now has to look for two things. Number one is awarding the home to one spouse in the child's best interest, and number two is it equitable to grant the house to one spouse over the other. There is no preference in the law for mother or father. Either spouse may be awarded the marital home if it is in the child's best interest and fair to the parties.
To determine if it is in a child's best interest, the judge will make a judgment call, and the judge has a lot of discretion. But in the cases that I have handled, the number one factor that stands out is the child's age and how long the child has lived there. If the child is still an infant or toddler, selling the house should not be a problem. However, if the child is in school, has lived in the home for years, has a routine, friends, etc. then the court can easily say it would be in the child's best interest to keep things the way they are. Of course, the judge will also have to determine if the parties can maintain the home until the child graduates from high school. If the home cannot be maintained, the judge will force its sale.
Another issue that spouses have to be made aware of is that the home still belongs to both spouses. The house will have to be sold, or one spouse buys the other out, once the child turns eighteen or the spouse gets remarried.
Since 1988, there is no entitlement to the mother being awarded the house, and the house will only go to one spouse (temporarily) if it is fair and in the child's best interest. Remember that when you ask for exclusive use of the home that it is only a temporary award and in the end your spouse is entitled to 50% of the home's value if and when it is sold. If the judge feels that it is not in your child's best interest to keep the house or if the judge feels it is not fair for one spouse to keep the house, then no one gets the house.