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If I’m Going Through a Divorce, Do I Have a Right to The Family Home If My Spouse Is the Only One Listed On the Mortgage?


Property division—alongside custody (or “timesharing” here in Florida)—is one of the issue areas that individuals going through divorce are most concerned about, especially when it comes to a couple’s house as the economy approaches another financial crisis similar to 2008, where the housing prices were driven up to levels that many could not afford. What to do about the family home is a topic we frequently discuss with our clients, and we only expect this to increase as the pandemic takes its toll on peoples’ jobs and some go into foreclosure.

The Law in Florida & Where Questions Can Arise

Here in Florida, the court begins with the premise that the distribution of marital assets, such as the family home, should be equal unless there is justification for an unequal distribution based on number of factors that the court is willing to consider, such as the contribution of each spouse to the marriage, the marriage’s duration, any contribution of each spouse to the marital assets, etc.

 Still, things can get more complicated, depending upon a couple’s particular circumstances. For example, if the mortgage is in one spouse’s name only, the house is in foreclosure, one spouse’s inheritance was used to improve the property, etc. While not being named on the mortgage does not negate the unnamed spouse’s interest in the property (as long as it was acquired during the marriage), if equity was depleted because the spouse named on the mortgage failed to make the mortgage payments, it is possible that the unnamed spouse that was unaware of these failed payments might be entitled to a credit. Essentially, any actions taken by one spouse that negatively affect the marital funds like that, such as causing marital property value to decline, will result in an offset for the other spouse.

Once The Divorce Is Initiated, A Number of Obligations Go into Effect

While a mortgage company may only be obligated to speak with the spouse whose name is listed on the mortgage, once that the divorce is initiated, that listed spouse is obligated to provide reports on the status of that asset – i.e. whether the mortgage is being paid, etc. – as the other spouse has an interest in the asset and thus any actions – such as failing to pay the mortgage – affect their interest.

One question that we frequently receive has to do with one spouse moving out and whether that affects their rights to the home: It is important to note that one spouse moving out of the home at any time before or during the divorce does not erase their interest in it (in other words, leaving the home is not considered “abandoning” your interest in it), and neither spouse can sell the home without the consent of the other party.

What A Florida Divorce Attorney Can Do for You: Find Out More

Your divorce attorney can not only assist you with how to protect your interests in the family home, but with decisions that sometimes come up after divorce, such as whether it makes sense to purchase a new home.

If you have any questions about divorce, property division, or any other area of family law, contact our experienced Orlando divorce attorneys at the Arwani Law Firm, PLLC today to find out how we can provide you with the very best assistance. We provide free, confidential, COVID-19-safe phone consultations.


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At the Arwani Law Firm, our Orlando divorce lawyers will work together to get you the best possible outcome in your case, while treating you with the utmost respect and compassion. When you meet with us, you’ll see we love what we do, and you’ll feel that enthusiasm as we work through your legal matter.

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