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What to do when there is equity in the marital home

Posted by attorney Jordan Gerber

In previous posts discussing the marital home, we touched on the current trend of its classification as a liability rather than an asset; as well as exploring the option of exclusive use and possession in situations where minor children are involved. So, what happens if the kiddies are a non-issue and you didn’t take a $200,000.00 line of credit on your double-wide with the assumption that the real estate bubble would never burst (c’monnn man…)??

If you didn’t take advantage of the relaxed lending practices of the first half of the decade and happen to believe that Sir Isaac Newton dude might have actually known what he was talking about; you probably have some equity left in your marital home. And unless you’re eager to spend the next few years walking the halls with the ghosts of wedded bliss past (talk about scary!), getting that sucker on the market may have just moved up a few notches on your priority list. Pump the breaks, Sparky, unloading your former dream home might not be as easy as you think.

When spouses disagree on what to do with the marital home, Florida law provides a specific mechanism called partition to force the sale of the property. While the power of the trial court to deny partition (or sale) of the marital home should only be invoked in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted; the court will refuse to take action unless the sale is properly plead for in a partition count. If partition is not properly requested, the parties’ final judgment may not resolve property rights in conjunction with the marital home and the parties are left tenants in common of the property; meaning will have an equal obligation regarding the property. Yes, that’s right folks, the person you just fought so hard to sever ties with is now; in essence, your real estate partner. BOOM.

While this can be remedied in a subsequent action for partition in civil court, the last place you want to go after a divorce is back to the drawing board. Especially if that drawing board is attached to someone charging an hourly fee. At The Law Office of Jordan Gerber, we know how important it is to do things right the first time so that our clients are spared from wasting unnecessary resources.

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