HOW TO OBTAIN EXCLUSIVE USE AND OCCUPANCY OF THE MARITAL HOME IN FLORIDA

A division of property and assets case involving the exclusive use and occupancy of the marital home was recently decided by the Florida Court of Appeal.  In a case captioned Ortiz v. Ortiz, the husband and wife were married in 2010, and had three children. They lived in Tennessee for most of their marriage, and then moved to Florida.  The parties obtained a VA loan to purchase their home in Florida.  After the parties moved to Florida, the wife found employment and the husband started attending culinary school in Orlando, Florida.  When the husband’s culinary school in Orlando closed, the husband moved to Miami to attend culinary school.

The wife filed for divorce.  In the wife’s Petition for Dissolution of Marriage, the wife sought exclusive use and possession of the marital home.  The trial court awarded the Wife exclusive use and possession of the marital home until the parties’ youngest child reached the age of eighteen or the wife remarried.

The Florida Court of Appeal affirmed the ruling of the trial court.  The Florida Court of Appeal stated that the marital home, like any other asset, is subject to equitable distribution.  A trial court may deviate from the presumption that there should be an equal division of property and assets and may award one of the parties exclusive use and occupancy of the marital home under the following circumstances: (i) when it is desirable to retain the marital home as a place in which the parties’ dependent children should live, (ii) when it is in the children’s best interests, (iii) when it would be equitable to award one of the parties exclusive use and occupancy of the marital home, and (iv) when the parties are financially capable of maintaining the marital home.

In the case of Ortiz v. Ortiz, the Florida Court of Appeal stated that, as a general rule, unless there are special circumstances, trial courts should award exclusive use and occupancy to a primary residential parent until: (i) the youngest child reaches the age of majority, (ii) the youngest child  is emancipated, or (iii) the primary residential parent gets remarried.  Special circumstances exist when the income of the parties is inadequate to meet their normal living expenses, debts, obligations, and the expense of maintaining the parties’ marital home.

In the Ortiz v. Ortiz case, the parties’ income was insufficient to meet all of their living expenses. However, the wife was able to continue making the mortgage payments for the marital home, the children attended school close to the marital home, and the wife and children would be required to move out of the area to find affordable housing if the marital home was sold.  Additionally, the husband and his fiancée rented a comparable home near the marital home.  Since the wife was able to make mortgage payments on the marital home, it was in the best interests of the children to remain in the marital home, and the husband was able to find comparable housing near the children and their schools, the Florida Court of Appeal affirmed the trial court’s award of exclusive use and occupancy to the wife.

To speak with a Boca Raton divorce attorney to discuss family law issues, contact the Lane Law Firm, P.A. at (561) 363-3400.

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