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Divorce and entitlement of proceeds when a marital home is sold

On Behalf of | Apr 12, 2019 | Family Law, Firm News

Floridians who get a divorce might be of moderate means or be in the middle of a high asset divorce. Regardless of their financial circumstances, there will be one property that has significant value and from which both sides will want a share: the marital home. Often, as part of the divorce, it is decided that the property will be sold. When this happens, it is imperative to understand what the law says about the entitlement to credits or setoffs (recovering of money due) when the property is sold. Having legal advice from a qualified litigator in family law is integral to dealing with this issue.

When the marital property is sold, there must be a settlement agreement, a final divorce judgment, or a final judgment to divide the assets or debts equitably or a party will not be entitled to setoffs or credits and it is specified that these will be provided when the property is sold. If there is no such settlement agreement, the court will assess various factors when it decides if there should be setoffs or credits as part of the divorce.

The court will consider: if the possession or exclusive use of the property to a spouse is being awarded and why this is being done; if alimony will be granted to the party in possession and if it is done to cover the costs – mortgage, taxes and more – because of the property; if there is child support being paid to the party in possession and if it is awarded to cover the aforementioned costs associated with the property; the value of the occupancy and use of the property for the party in possession; the value of the loss to the other party; who will be allowed to claim the payments on their taxes; and if one or both will face capital gains taxes if the property is sold. The court can also consider any other factor it deems important for a fair resolution.

There are many areas that will be in dispute in a divorce. Whether it is a relatively amicable case or a high conflict divorce, it is unavoidable that properties as valuable as a marital home will be part of a disagreement. Understanding the law and how it impacts who gets the home, how support will be paid and what happens if it is sold can be complicated. Calling a lawyer who is experienced in divorce can help cut through the issues and achieve a satisfactory outcome.