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How do judges decide what happens to the family home?

The family home is usually the largest asset that divorcing couples need to deal with. It's also one to which many people feel a deep emotional connection.

Often, the cost of one person staying in the home and dealing with the mortgage, maintenance and other expenses is too high, so couples sell the home and split the proceeds. Sometimes, couples work out an arrangement where one person buys out the other's share.

However, sometimes the family home becomes the center of a contentious legal battle, and the decision is placed in the hands of a judge. Judges consider a number of factors when determining what should happen with the home.

If there are children involved, judges will use the "best interests of the child" standard that they use in custody and visitation decisions. That usually means that the house will be awarded to whichever parent is getting primary custody, assuming that he or she can afford it. This means less upheaval in the kids' lives.

Another factor that may lead a judge to award the home to one person is a family connection. Even if both spouses are listed on the title, if the home was inherited by one spouse or has been in his or her family for generations, that spouse is more likely to be awarded the home.

In some cases, a judge will let one spouse keep the house, while the other spouse gets an asset of similar value, such as a 401(k) plan. Of course, many financial advisors will point out that the 401(k) is usually a better deal financially than getting the home.

Finally, a judge may order that the couple sell the home. The division of the proceeds may not necessarily be equal. It will likely depend on which person invested more money in the home, both in the initial purchase and in ongoing maintenance and upgrades.

This last solution may require each person to provide documentation showing their monetary investment in the home. Your Florida family law attorney can assist you with this and with seeking whatever outcome you want. It's important, though, to know the financial and tax implications before you fight to keep the home.

Source: Realtor.com, "Getting a Divorce? Here’s Why You Might Not Get the House," Warren Christopher Freiberg, Sep. 21, 2016

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