Exclusive Possession Of The Marital Home In A Florida Divorce

There is not an official law regarding changing the locks or keeping the house during a Florida divorce.  The issue of whether one person has the right to change the locks during a divorce depends on who has exclusive possession of the marital home.

Both parties to the divorce had access to the marital home because they both are residents of the home and probably both on the lease or the deed to the home.

When one party files for divorce, there is not an immediate determination as to who gets to stay in the marital home.  Typically, one party will move out because if you’ve filed for divorce you simply don’t want to live with the other person any longer.

Even though one party may have moved out of the home, that does not mean that the party has no right to return to the marital home.

The party staying in the marital home obviously does not want to be disturbed by the opposing party bursting in at any moment.

Domestic Violence Injunction Or Restraining Order

If there has been an incidence of domestic violence between a married couple, the victim may request from the court a domestic violence or a restraining order.  This injunction or restraining order almost always includes a clause providing the victim with exclusive possession of the marital residence.

The award or distribution of the marital home can then be resolved in a subsequent divorce action.

Exclusive Possession Of The Marital Home Before The Divorce is Finalized

After a divorce is filed and before the divorce is finalized, exclusive possession of the marital home will awarded via a motion for exclusive use and possession of the marital residence.

If the parties’ have children, the exclusive possession of the marital residence will usually be granted through a motion for temporary support, time-sharing, and other relief with dependent or minor child(ren). So, if you get temporary custody of the children, you get temporary exclusive possession of the marital residence.

If there are no children, a court is not likely to grant exclusive possession of a home if there has been no incidents of violence.  It’s likely that the couple has been living like roommates for years before the divorce so what’s a few more months?

Changing The Locks To A Marital Home Without A Court Order 

I cannot advise you as to whether changing the locks during a divorce is forbidden or worthwhile.  Your personal safety is your concern and I won’t fault anyone for taking safety precautions that do not hurt the other party.

Should you decide to change the locks to the marital home without a court order granting you exclusive possession of the marital home the following will happen.

• Your spouse will call the police. The police will tell both of you that this is a civil matter and that you should take this matter to divorce court.  In the meantime, the police may allow your spouse to enter the house to collect his or her things.
• Your spouse may break into the house. This is not breaking and entering, however, because your spouse has the right to enter into their home unless there is a court order stating otherwise.

Exclusive Possession Of The Marital Home When There Are Children

The Florida statutes provide that the marital home can be awarded to the parent who has the children if it is in the children’s best interests to continue living in the home and that award is equitable (fair).

Courts can 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 for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.” Fla. Stat. Sec. 61.075(h)

While this determines how the courts allocate the marital home in the final distribution of marital assets, it also provides direction as to who should hold the marital home in the interim stages of divorce.

Courts can also award exclusive possession of a marital home as a substitute or supplement for child support.

“a court may award exclusive use and possession of nonmarital property to a custodial parent incident to an award of child support only if it finds that the noncustodial al parent’s income is insufficient to meet the child support obligation. Mitchell v. Mitchell, 841 So.2d 564, 570 (Fla. 2d DCA 2003); Dyer v. Dyer, 658 So.2d 148, 149-50 (Fla. 4th DCA 1995). If the court elects to award the custodial parent exclusive possession, it must determine the fair rental value of the residence and include it in the custodial parent’s income for purposes of determining the amount of child support to be paid. Mitchell, 841 So.2d at 571; Dyer, 658 So.2d at 150.” Roth v. Roth, 973 So. 2d 580 – Fla: Dist. Court of Appeals, 2nd Dist. 2008

Exclusive Possession of The Marital Home When There Are No Children 

It’s tough to ask the court to award the whole house to one person because the default in a contested divorce is to sell all of the marital assets and distribute the value of the assets equally.

A marital home can be awarded exclusively if there is a “special purpose”

“The award of “exclusive possession” of property subject to disposition in a dissolution proceeding should either be directly connected to the obligation to pay support or be temporarily necessary to prevent reduction in the value of the subject property. The critical question is whether the award is equitable and just given the nature of the case. A grant of exclusive possession of property to one of the parties in a final judgment must serve a special purpose. See, e.g., McDonald v. McDonald, 368 So.2d 1283 (Fla. 1979)(a form of rehabilitative alimony for a spouse demonstrating a need); George v. George,360 So.2d 1107 (Fla. 3d DCA 1978) (aid to a child who had reached majority but who had a debilitating muscular disorder); Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978) (aid to a spouse with mental problems); and Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975) (aid to a spouse with custody of minors). In each of these instances, the exclusive possession is actually a facet of support and is clearly warranted because of the equity of the cause.” Duncan v. Duncan, 379 So. 2d 949 – Fla: Supreme Court 1980

In a divorce where a house is awarded to one particular party that award is the result of an agreement between the two parties whether it is a contested or uncontested divorce.  If you truly want to keep the marital home or any other property you are better off focusing on negotiating with your spouse in lieu of asking the court to award you exclusive possession of the home.

To learn more about exclusive possession of a marital residence in a Florida divorce contact Naples, Florida family law attorney Russell Knight for a free consultation.

Article Source : divorceattorneynaplesfl.com...