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Who Gets the Family Home in a Divorce?


It is not uncommon for both parties involved in a divorce to have an emotional attachment to the family home. This can make the decision of who gets to continue living in the residence one of the most contentious divorce-related issues encountered by many couples. Although it is possible for both spouses to remain in the home until the dissolution is finalized, this is not always the best option for the family’s well-being, so when a couple is unable to decide who will retain possession of the marital home, a court may be required to step in and make a temporary decision while the proceedings are pending.

Eventually, the parties will also have to deal with the question of who will remain on the property permanently or whether the home will be sold and the proceeds divided between the spouses. These issues are complicated, so if you are considering filing for divorce and have questions about who will retain the family home, it is important to speak with a dedicated divorce attorney who can represent your interests, whether in negotiations or the courtroom.

Pending Dissolution  

When a divorce is pending and a couple is unable to come to an agreement about who will remain in the home, a judge can step in and grant one spouse the exclusive right to possess and use the property. As a result, the other spouse will be required to move out until the final divorce decree is issued. Although there is no legal preference for who will be granted the right to possession, courts do take a series of factors into consideration, including:

  • Whether there are domestic violence accusations;
  • Whether one parent is the primary caregiver of the couple’s minor children; and
  • Whether the home is modified to account for a disability.

Grappling with these kinds of issues can easily cause contention, so it is often in a couple’s best interest to come to an out-of-court agreement on the issue.


Homes are almost always considered marital property. This is true even if only one of the spouses is listed on the mortgage or title, as courts take into account that marital funds are commonly used to foot the bill for and maintain the home, which makes the residence a marital asset. Florida law requires couples to divide their property equitably upon divorce, so if the parties are unable to come to an agreement about property division, courts can order the couple to sell the home if neither spouse can afford to pay the mortgage or maintenance costs on a single income. The proceeds will then be shared between the couple, although the exact percentage that each party receives will depend on a number of factors, including the length of the marriage and whether the parties have children. Alternatively, courts can order that the sale be deferred to allow the primary caregiver to remain in the home until the couple’s minor children have reached the age of majority. Finally, a judge can order one party to buy out the other spouse’s share if the person who wants to remain in the home has the means to pay an equitable settlement.

Speak with an Experienced Divorce Attorney  

To consult with a divorce attorney about the fate of your own marital home, please contact Sandra Bonfiglio, P.A. at 954-945-7591 today. Our Fort Lauderdale legal team is prepared to assist you immediately.



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