Posted by Nydia Streets of Streets Law in Florida Divorce

Who gets the marital home in a Florida divorce? A court can award one party the home and order that party to pay equity to the other spouse. The court can also order that one spouse have sole possession of the property until their youngest child turns 18 and then the house be sold. Yet another option is to order sale of the home immediately and a split of the net proceeds between the parties. This was an issue in the case Ortiz v. Ortiz, 2D19-587 (Fla. 2d DCA April 7, 2021).

The parties were married in 2010, and although they spent most of their marriage in Tennessee, they moved to Florida toward the end of the marriage. When they moved to Florida, they used the former husband’s VA loan to purchase a home. At that time, the former husband began attending culinary school until the school closed. He then paid down the parties’ credit card and moved to Miami to continue his studies. The wife continued to reside in Northern Florida with the parties’ children and paid the mortgage on her own. She filed for divorce seeking a partition of the marital home, or exclusive use and possession of the home until the youngest child turned 18. The former husband filed a counter-petition but did not seek a partition. At trial, he argued it would be prejudicial to allow the former wife to continue exclusive use and possession because it would tie up his VA loan, thus not allowing him to purchase a property for himself. He urged the court to grant a partition (sale) of the home. The trial court ultimately awarded the former wife exclusive use and possession of the home until the youngest child turned 18, holding it did not have jurisdiction to order a partition because the former husband did not request it in his counter-petition.

The former husband appealed, also challenging the distribution of certain debts and the child support calculation. First with regard to the partition issue, the appellate court noted “The trial courts' conclusion that it did not have jurisdiction to consider the request for partition is erroneous because the trial court has the power to divide and distribute the marital home under the equitable distribution statute, regardless of whether the party specifically pled for partition." However, the court found the award of exclusive use and possession to the former wife was justified because “Both of the parties' incomes are insufficient to meet all of their expenses. However, the trial court made sufficient findings that are supported by substantial competent evidence to justify awarding the wife exclusive use and possession of the marital home. The trial court found that the wife has consistently been able to make mortgage payments for the marital home since the parties' separation. There was also evidence that the children had consistently attended local schools close to the marital home and that, if the marital home were to be sold or refinanced, the wife and children would have to move out of the area to find affordable housing. Further, the husband and his fiancée rent a comparable home five minutes away from the marital home and the children's schools.”

Next, the court considered the credit card debt, much of which was assigned to the former husband in the equitable distribution scheme. The appellate court reversed, holding the final judgment was inconsistent and unclear as to what was marital and non-marital. The case was remanded for these determinations to be made and for appropriate findings to be made regarding distribution of these debts. Last with regard to child support, the appellate court noted the trial court inexplicably used a lower income for the former wife’s than that indicated in her financial affidavit. The case was therefore remanded for the trial court to make appropriate findings regarding the former wife’s net income and to recalculate child support accordingly.

If you need help determining how child support, alimony and equitable distribution might turn out in your Florida divorce case, schedule a consultation with a Miami family law attorney.