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.

During a divorce, Florida law requires the fair and equitable division of all jointly-owned property and this law applies to debts, as well. However, dividing up debts can be complex, especially if some debts are owned individually and others jointly. The name on the debt does not always mean that person will be solely responsible for the payments, however, and it is important to discuss debt division with an experienced divorce attorney who understands the relevant law. The following is some brief information regarding the division of certain debts in divorce:

Student Loans

Student loans are often individual debts unless the spouses cosigned on the loans or the loans were acquired during the marriage. In such cases, the loans would be considered marital debt and you may be held responsible for sharing the payment unless you and your spouse can agree otherwise. However, even if you agree that your spouse will be responsible for the loans, your name will likely remain on the loans and any failure to repay could affect your credit.

Credit Card Debt  

Credit cards are generally in the name of one person only and the other spouse is generally made an authorized user. However, if the debt was incurred during the marriage, it will likely be considered marital debt regardless of whose name is on the account. One exception to this may occur if your spouse purposely racked up a significant amount of debt in anticipation of the divorce. In such cases, a court may determine that debt will be their responsibility.

Mortgage

If you and your spouse bought a home together, your mortgage will likely be the largest debt you have. In many cases, especially if you do not have children, you may decide to sell the house to eliminate the debt all at once. However, if your spouse decides to stay in the home, you will likely have your part of the debt bought out. If you stay in the home and you cannot afford to buy your spouse out of the mortgage, you may be able to come up with another way to make up for it, such as giving them a greater portion of your assets or other property.

Contact a Divorce Attorney in Boca Raton for Help

When you are facing divorce, you likely already have enough financial concerns without having to worry about paying your spouse’s debts. Experienced divorce attorney Alan R. Burton knows how to fight for your right to a fair division of debt in line with Florida property division laws. In addition, Mr. Burton will assist in ensuring all child or spousal support determinations are fair so that you can emerge from your divorce in the best financial situation possible. We offer free consultations, so please contact our office at 954-229-1660 for help today.

If Lois remains married to Martin until his death, she would retain access to their homes in Palm Beach and New York City, their cars, their club memberships and art, and will receive an estimated $10 million. If the judge grants the divorce, Lois will receive none of Martin’s $50 million dollar estate based on a prenuptial agreement they signed prior to marriage and his children will instead inherit all of his wealth. The judge stated that he will have to determine whether or not each side is simply fighting over money or whether they truly have Martin’s best interests in mind. Each side, of course, claims the case is not about the money.

Divorce Involving an Incapacitated Person in Florida

Florida has a law in place intended to protect mentally incapacitated individuals whose spouses try to divorce them while they cannot defend their rights. The statute requires the filing spouse to wait until the incapacitation has lasted for at least three years before a court can grant a divorce. However, the incapacitated person is generally not the one who is seeking the divorce in the first place.

Even though the probate judge last year found that Martin Zelman had the capacity to file legal claims, the family court could decide that Martin is an incompetent witness, which would halt the divorce proceedings. If the court finds that he does not have the adequate capacity to get divorced, the judge could also potentially make them wait at least three years under the law. It is not clear what this waiting period would accomplish in this particular case, however, as Lois does not want to get divorced. We will have to wait and see what the court decides at an upcoming hearing.

An Experienced Boca Raton Divorce Attorney Can Help You With Your Case

Divorce cases can have many unique issues and you always want to have a lawyer handling your case who thoroughly understands Florida divorce laws and how they apply to your unique situation. Family law attorney Alan R. Burton knows how to handle even the most complicated divorce cases and will always zealously defend your rights. If you are facing divorce or any other type of family law matter, please call our Boca Raton office today at (954) 229-1660 to discuss how we can assist you.

If a couple cannot reach an agreement regarding who may stay in the home, the issue will have to be litigated in court. The court will look for a way to most equitably divide the property in accordance with Florida divorce law. Often, this may require the couple to sell the family home at fair market value, pay off the mortgage, and then divide the net proceeds equitably, if there are any.

Note that equitable distribution of property is not always 50/50 as the court considers many factors when deciding how to fairly divide property. For example, if one spouse had an affair, gambling problem, shopping addiction, or other factor that caused them to waste marital funds, the court may award that spouse significantly less proceeds for the home sale.

Selling the home may not always be preferable for divorcing spouses, especially if there are children who do not wish to be uprooted or if there will not be enough net proceeds for future down payments on separate properties. While a court will examine all of these circumstances, there is always a chance that the judge will order the sale of the family house in a Florida divorce even if it is against the wishes of the spouses.

The Importance of Working Towards Agreements in Divorce

Divorce can be complicated, especially if you and your spouse own a home or other substantial property. If you cannot agree on certain matters, such as who will remain living in the house, you risk leaving those decisions up to the divorce court. The decision by the court may not be the solution either of you preferred, so it is always better to negotiate and work together to agree on important matters. Working together may be difficult if your relationship has deteriorated beyond a certain point, and in such situations, an experienced divorce attorney can work to negotiate on your behalf.

An attorney will not let emotions cloud his judgment during the divorce process and is therefore able to focus on what is best for you. Spouses who have qualified attorneys often have a better chance of coming to agreements and avoiding litigation. This is usually preferable as litigation can be costly, time-consuming, stressful, and will often end up in a less desirable result—such as selling the home and dividing the profits.

Contact an Experienced Boca Raton Divorce Attorney for Assistance

Alan R. Burton is a highly experienced divorce attorney who has many resources to try to keep divorcing spouses out of court and come to agreements on their own. If you are facing divorce, contact our office today for help.

Incredible as it sounds, the Massachusetts legislature is considering such a bill. The proposal should not be considered in a vacuum however, as it applies only in specific situations, when minor children are involved.

The proposal was designed to promote and protect the best interests of the minor children, whose parents are in the midst of a divorce.

Robert LeClair, a local Massachusetts lawmaker proposed the bill, after going through a bitter divorce himself. The specifics of the bill would be to prohibit the parent in possession of the marital home, from engaging in any type of sexual relationship with a new partner during the parties separation, and prior to the divorce proceedings concluding.

The bill would would have to be passed by the state legislature, and then approved by the governor.

The language of the bill reads as follows:

“In divorce, separation, or 209A( restraining order)proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts,”

The law, if passed, would raise some interesting questions about obtaining the necessary evidence to prove a violation of the law. Since children are generally not allowed to testify in court, absentee spouses will need to become quite creative in order to prove their case. This bill will most certainly keep the private detectives in Massachusetts quite busy.

Source: The Huffington Post, “Massachusetts Bill Could Ban Sex During Marriage“, Emily Thomas, March 24, 2014

The question frequently arises as to whether or not one person or the other person can continue to reside in the marital home after divorce. The answer to that question is resolved by the specific circumstances and facts that are applicable in your particular situation.

If the home was acquired during the marriage, and there are no minor children, then generally one person or the other can buy out the other person’s interest. In that manner, you could become the sole owner of the home.

If you are unable to immediately acquire the other spouse’s interest in the home, an option may be to enter into an agreement for temporary occupancy of the home for a set number of years. This might give you the time you need to get your life organized after a divorce, and arrange for financing to buy out your ex-spouse’s interest in the home.

The situation is a little bit different if you have minor children. Generally speaking the courts will allow the primary caregiver to continue to reside in the marital home with the minor children, until the youngest of the children attains the age of 18. At that point in time, the house is usually sold and the proceeds divided equally.

Reading a blog can only give you a limited amount of information regarding this issue. It is always best to meet with a lawyer face-to-face and to discuss the specifics of your situation. Not only are you getting the information you need regarding your particular issue, your also have the opportunity to meet the lawyer who is going to be representing you. You should feel comfortable with your lawyer, feel that you can trust your lawyer, and that he will be responsive to you throughout the process.

I would encourage you to call my office, and to schedule a free consultation. My free consultations are in my office and I do not limit you to a telephone consultation. My offices are located in Boca Raton and Fort Lauderdale, Florida.

You can reach me at any time during normal business hours at (954) 229-1660. After normal business hours, feel free to call me at 954-295-9222.

A person claiming entitlement to any credits or set offs from the marital home must provide for these items in their marital settlement agreement.

If there is no agreement, and this issue is to be resolved by the court, the court will consider the factors in Florida Statute 61.077.

Among those factors are the following:

• Whether exclusive use and possession of the home is being awarded
• Whether or not alimony is being awarded
• Whether child support is being awarded
• The value of the use and occupancy to the person in possession
• The value of the loss of use and occupancy to the person not in possession
• Which party will be able to claim the deductions associated with the property, such as
• Taxes, interest, etc
• Capital gains taxes
• Any other factor necessary to do equity

Many of these items can be overlooked when you are involved in the mediation process, and considering the disposition of the marital home. Don’t overlook the importance of having a competent, well qualified attorney to represent your interests in your divorce case. There are many issues that an inexperienced litigant can easily overlook.