Florida Divorce Law and Leaving the House

By Victoria McGrath

Mature man sitting in back of van looking away

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In Florida, either spouse may move out of the house without a court raising the issue of abandonment of the home. Florida law does not address the issue of abandonment regarding the marital home. However, moving out may give your spouse an opportunity to remain in the house as a primary caregiver of the children and result in you paying child and spousal support.

Minor Children at Home

If a parent moves out of the home and leaves the children behind to live with the other parent, this court may consider this fact in awarding custody. When you move out and your spouse remains in the home with your children, the court may find that it is in your children's best interests to remain in the home. At the court's discretion, the court can determine that it is in the children’s best interests to remain in a stable home environment under the other parent’s care. The court may allow the primary care provider to maintain the home until the youngest child turns 18 years old. In this case, moving out does not directly affect your property rights, but it may indirectly affect who keeps the marital home after the divorce.

Name on Lease or Deed

If your name appears on the lease or deed, you have an equal right to possess your residence with your spouse, until the court orders otherwise. If you purchased the home with your spouse during your marriage, you and your spouse own the home together and your physical presence outside the home should not affect your financial interests in the property. During a contested divorce, however, if you and your spouse cannot decide who should stay and who should go, the court may determine who has a right to remain in the home and who must move out. If you are already out of the home, the judge may accept this as a convenient resolution, and give the home to your spouse and give you the cash value of your share. Depending on the fair-market value of your home at the time of your legal separation, this may or may not seem like a fair settlement to you.

Exclusive Use and Possession

When you decide to move out of the marital home for the benefit of the family, to reduce fighting or to reduce the overall stress of the pending divorce, your spouse may not change the locks or lock you out of the home, without a court order. For your spouse to legally deny you access, the court must award your spouse exclusive use and possession of the marital home. In this case, the court order does not deprive you of any property rights, but restricts you from entering or using the property until the court resolves your divorce case and property distribution.

Child Support and Spousal Support

In a household where you are the only income earner, it may make more sense for you to move out, because you are the only one who can afford to rent another place. If you move out of the house, it may be difficult for you and your spouse to pay a mortgage and additional rent on an apartment each month. You may go to court and argue that you should keep the home because you are the only one with income. However, if your spouse remains in the house with physical custody of the children, the judge may order you to pay child support, spousal support and other expenses. Your spouse may be able to keep the home based on the divorce settlement and on the amount of money that the court ordered you to pay each month.