February 8, 2013 ·
By: Michael H. Gora
Q: My wife and I moved to Boca Raton ten years ago, and bought a house for $275,000. It was once worth about $750,000, now only $400,000.00. I own a business, which my attorney tells me has nominal value under Florida divorce law. We have retirement savings, a couple of luxury cars, on lease, and a small boat. The house is our major asset; it has a mortgage of only about $100,000.00. We have three children under eighteen.
Before she filed the divorce, my wife and I had agreed to sell the house and split the proceeds. She would keep the retirement accounts; I would get the business. Her lawyer told her that she could live in the house until the youngest child was eighteen years old, and when it was sold, the proceeds would be divided. Without selling the house, I cannot buy a house of my own.
She now wants to keep the house, stating that she could not live anywhere else, in such a nice house, with as low a mortgage payment as we have now. She would need alimony, which she says she would not need if she stayed in the house. She works, and says she would be fine with some alimony and child support, if the house were sold later. I would like to settle, but then I’d have to rent. What do you think a judge would do if we went to trial? What should I do?
A: Your wife is asking for the right to “exclusive use and occupancy” of the marital home, as an adjunct to child support. Case law says that such a result is favored by Florida courts. On the other hand, the cases say that financial circumstances, such as those you outline may require its sale.
Depending on the rate of interest on your current home loan, and the price of the wife’s proposed home, she is correct that she and your children might wind up living in a smaller home in a lesser neighborhood, if the home is sold, at a greater expense, to which you might have to contribute, through permanent alimony.
Your decision should be based on complete financial information, and the advice of a financial planner. You could negotiate a modification of her terms, by requiring her to move if she remarries, lives with another person, or after a number of years less than she asks for.
Your house may continue to grow in value. In negotiating, be sure to specify who is to pay the mortgage payment, real estate taxes, insurance, maintenance, and repairs. Specify whether the paying person gets any extra credits at the time of sale.
If this issue tried, you have a good chance of winning, upon your demonstration that you would not be able to buy a home unless the current home was sold. A financial planner s for your wife might convince the judge that you, your wife, and children would be better off if the home was kept, as an investment and a good place to raise the children.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at firstname.lastname@example.org. or at (561)477-7800.
By Online Staff