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Who Gets the Marital Home During a Boca Raton Divorce?

When we first meet with clients going through a divorce they have many questions: Will I have to pay alimony? Can I get sole custody of the children? Is she entitled to my pension? But one of the first questions our divorce attorneys are asked is often: who gets to live in the marital home during the divorce?

Moving doesn’t rank high on the list of anybody’s favorite activities. So it’s unsurprising that someone going through a divorce would want to avoid piling on to that stress by adding a move into the mix. The thought of moving is particularly troublesome to couples with children, who don’t want to add more upheaval to their children’s lives.

In most cases, the issue is easily resolved, as one spouse voluntarily moves out of the marital home. Usually, the spouse who will be the children’s primary caregiver retains possession of the home during the divorce. This arrangement continues until the couple either sells the home, or takes other actions according to the terms of the divorce agreement.

Despite this arrangement, both spouses retain their rights regarding the home and do not relinquish legal possession. This means that neither spouse has a better right to the home than the other, and neither can prevent the other from entering.

Most of the time this isn’t a cause of concern. Given the fact that the marriage is ending, couples are usually eager to get away from each other. But in those instances where neither spouse willingly moves out, the only recourse is to petition the court to award temporary exclusive possession of the marital home while the divorce is finalized. The court will do so under limited circumstances.

Exclusive possession is in the children’s best interests. If children are involved, the spouse who is serving as the children’s primary caretaker can file a motion with the court for exclusive possession of the marital home. In order for the court to award exclusive possession you must prove that it would be in the children’s best interest to remain in the home, and that it is financially feasible for you and your spouse to maintain the home until the children turn 18 or are otherwise emancipated.

Domestic violence protection order. If one spouse is the victim of domestic violence, she can request temporary possession of the home under Florida’s domestic violence laws. Utilizing this option would also allow the abused spouse to have other protections put in place, such as an order restricting contact or public drop-offs for custody transfers.

Boca Raton Divorce Attorneys

If you are getting divorced, the Boca Raton divorce attorneys at Schwartz | White are here to help. Our attorneys have more than 50 years’ combined experience handling all divorce related issues, and can help you retain exclusive possession of the marital home during and after the divorce. Our goal is to come to a mutually agreeable solution that both parties can live with but, if that is impossible, we will aggressively fight for a fair and equitable settlement. Contact our office at 561-391-9943, or complete our convenient web form, to schedule an appointment with an attorney today.

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