marital home divorce
Family LAw Law

When is a home considered marital property?

When is your home considered marital property? Just because you and your spouse lived in a home during the marriage does not guarantee you interest in it.

In Florida, Courts will divide the marital assets and liabilities 50/50 between the couple unless there are factors that would make an equal split inequitable. The home will be subject to equitable distribution if it is determined to be a marital asset.

When is the Home considered a marital asset?

In general, an asset acquired during marriage is presumed to be marital, regardless of whether it was acquired or incurred by one spouse alone or by both spouses together. See Fla. Stat. §61.075; see also,Pfleger v. Pfleger, 558 So. 2d 198, 199 (Fla. 2d DCA 1990); Buttner v. Buttner, 484 So. 2d 1265, 1266 (Fla. 4th DCA 1986).

Further, real property held by spouses as tenants by the entireties is presumed to be a marital asset, regardless of whether the property was acquired prior to or during the marriage.

Does your name appear on the title to the property? This should be the first thing you should check.

When is the Home considered a nonmarital asset?

A home may be classified as a nonmarital asset if one spouse acquired it prior to the marriage and the other spouse’s name is not on the title.

Use of nonmarital property as a marital home is not enough to establish the property as a marital asset. Hooker v. Hooker, 174 So. 3d 507 (Fla. 4th DCA 2015) (citing Embry v. Embry, 650 So. 2d 190, 191 (Fla. 2d DCA 1995)), reversed on other grounds, 220 So. 3d 397 (2017).

For example, in a Florida case, a wife in a divorce action was claiming interest in the home owned by the husband. The wife argued that her husband intended on gifting the property, and that she believed she owned the home with the husband because it was a family home where they lived. The Court found otherwise. The most significant factors defeating the wife’s claim of donative intent (intent to gift) regarding an interest in home were that: (1) she was never liable on loans pertaining to the property; and (2) her name was never included on any documents evidencing actual ownership of the property, even though the husband had multiple opportunities to acknowledge any interest he intended her to have. [see Hooker v. Hooker, 174 So. 3d 507 (Fla. 4th DCA 2015), reversed on other grounds, 220 So. 3d 397 (2017).

However, lack of a spouse’s name on official documents regarding property is not dispositive of the gift issue, and donative intent may be established by other evidence. Further, even if a spouse is named on documents pertaining to property, that evidence is not sufficient to establish an interspousal transfer without other evidence of donative intent. See Kuebler v. Kuebler, 131 So. 2d 211, 219 (Fla. 2d DCA 1961).

Next step:

If the home is determined to be a marital asset, the next step would be deciding on how the interest, if any, will be divided. You and your spouse can reach an agreement as to how the interest in the home will be divided. The Court will decide what to do with the home if you and your spouse cannot reach an agreement. In most cases, the Court will order the home to be sold.

Taking that into consideration, it is important to chose an agent that understands what you are going through during this difficult time.

Below is a video by Ms. Marilyn Escobar, a broker with Abella Real Estate who has 19 years experience. In this video, Ms. Escobar goes through the services she provides couples undergoing a divorce, which includes taking phone calls, scheduling showings, negotiations, marketing, and performing a comparative market analysis on the property.

If you have questions about what is considered marital property, it’s best to ask a qualified family attorney. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

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