What if a house that my wife and I own is not included in the divorce?

When people are married and they purchase a house together, the house is automatically titled as tenants in the entirety, which means that each party owns the entire house and this is referred to as an undivided interest in the property. Both have the right to occupy it and use the property and they each have a right of survivorship, so if one of the parties dies then the property would automatically pass in its whole to the other party without the necessity of probate. In addition, creditors of one spouse cannot force a sale of the property to collect a debt. Note also that if the house is homestead the creditors cannot force a sale of the property.


When the parties obtain a divorce, normally the marital settlement agreement will include provisions on how the house is to be distributed between the parties and who will be responsible for the mortgage or that the mortgage will be refinanced, etc.. If the property is not included in the marital settlement agreement and the divorce is final, the the parties will continue to own the house together; however, it will become owned as tenancy in common. This is a type of ownership where each party owns a share of the whole of the property. In this case, each spouse would own one half of it and this half can be sold to another or if one of the parties dies then that party's one half share will be subject to inheritance laws. In addition, each party will have the right to full access to occupy the home. If the parties have a mortgage on the property, then each will continue to be responsible for payment on it and if one party does not pay their share of the mortgage, the other will be responsible for paying it. There will be no recourse in the divorce court after the marriage is finalized if the parties do not include it in the divorce.


Therefore, in short, if you own a home and you are married, unless you provide for it in the divorce, then both the wife and husband will continue to own it as tenants in common as explained in the paragraph above.


By Lynette Silon-Laguna

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Question: I bought my house 5 mos before I got married, now 18 years later I want to get a divorce, is my husband entitled to 1/2 of house -the house is payed for, and I am divorcing him because he is an alcoholic and spends all his money on drinking - I always bought everything that was needed for the house?

In a divorce, one of the more difficult areas for divorce attorneys may be determining the distribution of the parties' assets.  First it must be determined what assets are non-marital.  Normally, if an asset is purchased prior to the marriage then it would be considered premarital property and the party who purchased it prior to the marriage will receive it, except as stated in Fla. Statute § 61.075 (6)(a)1.b.: "The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both."

In this case, the purchase of a house prior to marriage would make it non-marital, unless the value and appreciation of the house has resulted from either the contribution or expenditure of marital funds.  For example, the payment of the mortgage from marital funds would mean that the increase in value due to the payments would be marital and subject to division in the divorce.  Fla. Statute § 61.075(6)(a)1.a. defines marital assets and liabilities as those acquired or incurred during the marriage, individually by either spouse or the spouses jointly. So any income, assets that you acquired individually during the marriage are considered marital and likewise for your husband.  Furthermore, if marital funds are used to enhance the value of the house, then the appreciated value would be subject to division.  In addition, if the value of the property increases due to the efforts (i.e. physical) of either party during the marriage than that increase is subject to division.  Note that it is only the appreciation of value which is subject to distribution.  The remainder of the equity in the home would remain with the party who purchased the home prior to marriage.

The court in determining distribution of marital assets and debts begins with the premise that they should be equally divided between the parties; however, the court also looks at the factors listed in Fla. Statute § 61.075(1) to determine if an unequal distribution is required.  You say in your question that you have always bought everything that was needed for the house.  Therefore, it is necessary to  determine whether one of the factors in § 61.075(1) will apply under your circumstances, so that you may obtain a larger division of the marital assets.  It would be beneficial to contact a knowledgeable divorce attorney who can help you get the best division of your assets considering all of the circumstances involved.

Visit our website for more information on property and debt distribution in divorce.

By Lynette Silon-Laguna

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Question: Does the victim of domestic violence win custody of a child?

The answer to the question is that it depends.  First, you need to know that there is civil domestic violence and there is criminal domestic violence and these are treated differently, so the answer would depend on which it is in your case.

 

If there is evidence of civil domestic violence or child abuse or there is an injunction for protection against domestic violence determined in a civil court, then this may be considered by the court as detrimental to the child.  It is one of the factors listed in Fla. Statute §61.13(3), which the court looks at when determining what is in the best interest of the child when establishing a parenting plan, including the timesharing of the children. What is in the best interests of the child is the criteria the court uses in all decisions regarding children.

   

If a parent has been convicted of a misdemeanor of the first degree or higher as defined in Fla. Statute §741.28 and §775, or meets the criteria of §39.806(1)(d), then under Fla. Statute §61.13(2)(c)2) this creates a rebuttable presumption of detriment to the child.  The convicted parent may rebut this presumption; however, unless this presumption is rebutted the court may not give the convicted parent shared parental responsibility, which includes timesharing or any decisions made regarding the child.   If this were to occur, then the other parent would have sole parental responsibility of the child and make all decisions regarding him or her.  The convicted parent may get some timesharing as the court determines would best protect from further harm the child or abused spouse.

 

In Florida, it is public policy that there is shared parental responsibility for the children by both of the parents.  When there is separation or divorce each is encouraged to share in the rights and responsibilities of having children.  There is no presumption for a certain timesharing plan or for or against the mother or father.  If the parents cannot agree on a parenting plan then it will be up to the court to determine the best parenting plan based upon the child’s best interest using the factors of  Fla. Statute §61.13(3).

 

By Lynette Silon-Laguna

 

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The Divorce Process in a Nutshell

The length and what is involved in the divorce process depends upon the parties involved.  Furthermore, if you or your husband or wife is in the military, there may be issues involved such as military retirement, special residency requirements, requirements of service on an active duty spouse. There are those who can agree on a settlement of their issues and so obtaining a divorce is uncontested. Sometimes the parties can enter into an agreement and file it with the petition for divorce.  Or in the alternative, he or she can file the petition with the court and serve the other party with it by process server, who will have 20 days to respond.  Furthermore, if the other party is agreeable he or she can accept service of the petition, rather than being served by a process server.  Upon filing the petition, the court will order that the parties attend a Case Management Conference which is scheduled for 90 days after the petition is filed.  This is a hearing which is essentially a status conference, so that the judge knows what is happening in a case and what needs to be done in it.  

Even if the parties can come to an agreement, there are still forms which must be completed, some of which are filed with the petition and some are filed prior to the final hearing.  There is mandatory disclosure which is required of both parties; however, they can agree to waive it.  It is required that each party file a Financial Affidavit and this requirement cannot be waived.  If there are children involved, then it is mandatory that a Parenting Plan signed by the parents and a Child Support Guidelines Worksheet be filed.  Child support is mandatory because family law looks at it as it is for the child and cannot be waived by the parents.  

If a marital settlement agreement is not filed with the petition, then the husband and wife will have to come to an agreement thereafter and file it with the court.  If they have attorneys helping them with their divorce, then the attorneys can put the agreement together and the parties will sign it.  If an agreement is reached and  filed, then the parties can proceed to an uncontested final hearing or the final hearing can occur at the Case Management Conference.  At that time, the judge in the case will enter a final judgment which will incorporate all of the terms in the agreement.  It will thereafter be enforceable by the court.

If the parties cannot come to an agreement, then in Hillsborough County, mediation is required prior to the case being heard by the judge.  Mediation can be either through the county or private mediation.  Private mediation may be more costly; however, it can be scheduled earlier in the process, as it usually takes two to three months to schedule a mediation with the county.  Another plus to private mediation is that there is no time limit on the length of the mediation, whereas, county mediation is limited to two hours.  If the case is uncomplicated, then county mediation may be sufficient; however, for more complicated cases it is worth the additional expense to attend private mediation as the parties have more time to settle and are more likely to settle some or all of the issues .  If an agreement is reached, the mediator will prepare the agreement for the parties to sign.  It will then be filed with the court and a final uncontested  hearing will be scheduled.  The final judgment will incorporate the terms of the mediation agreement.

A trial date will be scheduled for resolution of all or the remaining issues if the parties cannot come to an agreement at mediation. This will be a contested divorce action. The parties may also need to attend a temporary relief hearing if there are issues such as child support, child custody and timesharing, alimony and property division, which need immediate resolution.  Trial dates may be scheduled for three months or more after mediation.  The parties will attend the trial with their attorneys and each will present testimony and evidence to support their position.  The judge will take it into consideration and he or she will come to a decision at the trial or more often weeks after the trial date.

It is very costly both financially and emotionally to prepare for and attend trial.  Furthermore, neither party may be happy with the court’s decision.  Therefore, if at all possible, it is advisable to come to an agreement which requires that the parties compromise and understand that it may not be possible to receive everything requested.

By Lynette Silon-Laguna

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