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Can I Stay in My Home With My Children After Divorce?

There is a general rule in Florida that essentially says that a trial court should award the primary residential parent exclusive use and possession of the marital residence after divorce, until the child or children reach majority or are emancipated.

As we often discover in life, there are exceptions to every rule, and this holds true in situations dealing with the marital residence.

When “special circumstances” exist, it may be appropriate for the court to order the sale of the marital residence, rather than awarding exclusive use and possession to one of the parties.  Special circumstances may exist “when the parties incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expense of maintaining the marital residence.”  This concept was set forth in the case of Coristine v Coristine, 53 So3rd 1204, (Florida 5th DCA 2011).

In a different case, the trial court felt that it was appropriate to order the sale of the marital home when the parties had only lived in the home a short period of time, they lacked significant marital assets, and there was a large differential in relative earning power between the parties.  You can read an analysis of these types of special circumstances in Martin v. Martin, 959 So.2d 803 (Fla. 1st DCA 2007).

One could argue that when the payments related to the marital home are significant, the occupying spouse, who has sufficient income, could easily find a less expensive alternative.

In many divorce cases the marital home may be the only significant asset owned by the parties.  It would be unfortunate if one party could not receive their equity at the time of the divorce.  If this is your goal, you can gain more success with your objectives by calling Alan R. Burton, an experienced family law and divorce attorney in Boca Raton, Florida.  Call him today at 954-295-9222 if you are considering a partition or forced sale of your marital home.

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