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Florida divorce: awarding exclusive use and possession of the marital home

Posted by Nydia Streets of Streets Law in Florida Divorce

If one spouse wants to keep the marital home but the other wants to sell it, what happens in a Florida divorce? If there are minor children involved and one spouse will maintain majority time-sharing with the children, this is a factor the court may consider in awarding exclusive use and possession of the home. This was an issue in the case Lowry v. Lowry, 5D22-2707 (Fla. 5th DCA March 1, 2024).

At the time of the parties’ divorce, they had two minor children. The parties agreed the former wife would have majority time-sharing with the parties’ children. The former wife requested that she be awarded exclusive use and possession of the marital residence until the youngest child turned 18 so as to minimize the effects of the divorce on them. The former husband opposed this, arguing the children would be more comfortable having time-sharing with him in a home versus the apartment he was renting while awaiting the release of the equity of in the marital residence. The former husband requested a sale of the property with the net equity to be divided between the parties, presumably so that he could purchase a home. The trial court granted the former husband’s request to partition the property and the former wife appealed.

The appellate court reversed, noting “The general rule that has developed in Florida in these cases on whether the marital home should be partitioned and sold or whether exclusive possession should be awarded to one party during the children’s minority is that ‘a trial court should award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances.’ [internal citation omitted].”

The court found there were no “special circumstances” where “Former Husband is a successful organizational psychologist who owns a consulting business that provides coaching and team building services for many businesses. Former Husband’s net annual income for the year prior to trial was over $300,000, and his financial affidavit filed not long before trial reflected a monthly income of $22,494.92. Former Husband also testified at trial to having approximately $230,000 in his checking account and his brokerage account.”

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