Leveraging Our Experience

To Simplify Complex Legal Problems

Does child custody affect who gets the family home in a divorce?

On Behalf of | Jul 5, 2023 | Family Law

Some married parents in Hernando County will decide that even though they have a child together, their marriage is no longer sustainable, and they are better off divorcing. If these parents are also homeowners, a decision will need to be made about who gets to stay in the family home once the dust has settled and the divorce is finalized.

Equity and the family home

Florida courts start with the presumption that all marital property should be divided equally between spouses in a divorce. However, the state recognizes that there are times when an unequal distribution is more appropriate. Courts will consider various factors when determining if an unequal distribution is warranted.

One factor is whether it is desirable for any children of the marriage to continue living in the family home. If so, the court might award the family home to the spouse who has primary physical custody of the child if doing so is equitable, is in the child’s best interests and is feasible financially for both spouses. Whether staying in the family home is in the child’s best interests is paramount under such circumstances.

The child’s best interests

So, when is it in the child’s best interests to remain in the family home? Well, all children have different needs and what works for one family may not be the same as what works for another family.

But staying in the family home provides many children with a sense of stability. This is especially important during a divorce. The child is adjusting to their parents living under different roofs, which is a major change in their life. Residing in the house, neighborhood and attending the school that they are familiar with helps many children as they process their parents’ divorce.

If one parent is awarded sole custody of the child, it might make sense in some cases for that parent to retain the family home. Doing so promotes the child’s emotional well-being and provides the child with stability during an unstable time.

If parents share joint custody, the division of the family home becomes more complex. Both parents might agree that the child should stay in the family home but disagree about which of them should enjoy the right to also stay in the family home.

When this happens, there are some creative arrangements that might work for some families. For example, parents could try “nesting,” where they both retain ownership of the family home, and rotate living in it with the child. This does, however, require a great deal of cooperation, which some divorced parents may be unable to achieve.

The family home is a major asset in most marriages, and it has a lot of sentimental value as well. It is natural for both spouses to want to stay in it after their divorce.

If a parent has custody of their child, they may feel entitled to the family home. And while it is often in the child’s best interest for that parent to be awarded the family home, this is not a given. Florida courts start from a place of equal distribution in the division of assets and deviate from that based on an examination of relevant factors.