Case Examples of Alimony And The Marital Residence

When spouses decide to dissolve their marriage, there is typically a marital residence that needs to be awarded as part of the financial support arrangement otherwise known as alimony. The general rule in a dissolution of marriage proceedings is that the court should award the primary residential parent exclusive use and possession of the marital residence until the child(ren) of the parties reaches majority, is emancipated, or the parent remarries.

This however is a rule subject to exceptions. Special circumstances such as financial problems, limited time spent living in the marital residence, and lack of other marital assets may lead the court to go against the general rule.

Furthermore, in cases where the home is to be sold, the court will determine the division of the proceeds. When a judge enters a final judgment of divorce with instructions on the marital home, he or she must include specific details in the order such as: who will be responsible for certain expenses, what would occur in case the home does not sell, as well as providing a deadline of sale.

Below, we discuss some case law examples that address these issues with alimony and the marital home.

Court Grants Wife Exclusive Use of Marital Residence for a Short Period of Time Even Though The Child Would Be Less Than The Age of Majority

Murkerson v. Murkerson 325 So. 3d 1034 

The issues raised by the wife, Jessica Mukerson, are that the trial court erred in 1) not awarding her exclusive use and possession of the marital residence until the parties’ youngest child reaches the age of majority and 2) not awarding her permanent alimony.

On the first issue, the general rule is that a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries unless there are special circumstances such as the parties’ relative financial positions.

In this case, the trial court declined to grant the Wife possession of the home until the youngest child was of majority age based on two issues: (1) the Husband could not purchase a home for himself and his children as long as he remained responsible for the mortgage on the marital home and (2) the Wife would have sufficient income and equity needed to refinance the marital home for herself before her period of possession expired. On appeal, the court determined that these two issues did not constitute an abuse of discretion. Thus, the appellate court upheld this decision.

On the second claim, an alimony award must be supported by sufficient findings to demonstrate that the payee spouse has a need for the amount of alimony awarded and the payer spouse has the ability to pay that amount.

While the court found that there were sufficient findings of the Wife’s need for alimony and the Husband’s ability to pay, there was no way to determine how the court arrived at the alimony amount and the Wife had not shown by clear and convincing evidence that a disparity in income was sufficient to award her permanent alimony. Thus, the court’s ruling was reversed and remanded for additional findings.

Wife not Granted Exclusive Use and Possession of Marital Home As Part of An Alimony Award – No Showing of An Ability to Financially Maintain Marital Home Over Extended Period of Time

Moody v. Newton 264 So. 3d 292

 In this case, the former wife argued that the lower court abused its discretion in failing to award her exclusive use and possession of the marital home.

According to prior case law, the exclusive use and possession of the marital home is normally awarded to the custodial parent until the minor child reaches the age of majority. However, in this case, the court found that the parties were unable to maintain their marital lifestyle, having incurred over $100,000 in marital debts. Because of the former Wife’s limited income, it was unlikely she would be able to afford and maintain the home over an extended period. Under the law, it must be financially feasible for the parties to maintain the residence until a child is emancipated. As a result, the lower court did not abuse its discretion as the judge’s ruling was upheld.

Former Wife Entitled to Partition of Marital Home in Equitable Distribution of Marital Assets Due to Time Spent Living in Home, Lack of Marital Assets and Difference in Earning Capacity

Dottaviano v. Dottaviano 170 So. 3d 98

Here, the wife contends that the court erred in awarding exclusive use and possession of the marital home to the Husband rather than partitioning the home.

In her papers, the wife requested that the trial court partition the marital home but the trial court denied this request and granted exclusive use and possession to the Husband, who was the primary residential parent of the parties’ minor child.

The general rule is that the trial court should award the primary residential parent exclusive use and possession of the marital residence until the child reaches majority or is emancipated. Special circumstances however may justify partition and sale of the marital home. For example, where the parties resided in the residence for a short period of time, lacked other significant marital assets, and had a large difference in relative earning power between the former spouses.

In this case, the family had lived in the marital home for a short period of time, did not have any other significant marital assets, and had a large difference in the parties’ earning capacity. The wife also agreed that the payments related to the marital home were significant and the Husband could find a place for himself and the minor child that was less expensive. Due to these findings, the court ordered that the marital home be partitioned.

Former Husband Properly Exercised His Right of First Refusal When He Responded to Wife’s Email

Castelli v. Castelli 159 So. 3d 271

As a part of their dissolution of marriage proceedings, the trial court entered an agreed order to list and sell the marital home. The order required the parties to list the home for sale and attempt to get the best price possible. It also granted the Former Husband a right of first refusal for a bona fide offer acceptable to the parties without paying commission as long as the Former Wife was paid in all cash for her interest.

On April 23, 2014, the parties received an offer from a third party to purchase the marital home for $600,000. The following day Former Wife signed the contract and the Former Husband, through his attorney, emailed the Former Wife to notify her that he was exercising his right of first refusal. The former Wife’s attorney responded at 11:21 AM demanding that the Former Husband sign and deliver a contract that matched the third party offer as well as provides proof of his ability to comply with the offer, by 1:00 PM that same day. If not completed by this time, the Former Wife’s attorney demanded that the Former Husband sign the original completed offer by 5:00 PM that same day. The former Husband did not comply with either demand.

On April 28, 2018, the Former Wife filed an emergency motion to compel the appellant to execute the third-party offer, be held in contempt, and sanctioned.  Claiming that the Former Husband had 24 hours to match the offer, failed to do so, and therefore should be required by the Court to execute the offer. The trial court found the Former Husband to be in contempt for failing to execute the offer, also that the Former Husband improperly exercised his right of first refusal. The trial court-appointed independent counsel to act as the Former Husbands attorney-in-fact to sell the marital home.

On appeal, the court held that the Former Husband had properly exercised his right of first refusal in his email to the Former Wife informing her of this intent. Even though the Former Husband’s email did not contain any specific details of the offer, it contained sufficient language to exercise his right. The right of first refusal is improperly exercised when the holder of the right attempts to add or delete terms or conditions. Since the email did not contain any terms or conditions that differed from the purchaser’s offer and stated that it was intended to be formal notice of intent to exercise his right, it was proper. Simply intending to match the terms of the third-party offer is sufficient, there is no requirement to recite the terms of the third-party contract that he is agreeing to match. The court reversed and remanded to the trial court to strike the Former Husband’s contempt order and enforce the Former Husband’s right of first refusal.

Final Judgement of Dissolution of Marriage Failed to Address Important Responsibilities Regarding Sale of Marital Residence

 Matteis v. Matteis 82 So. 3d 1048

In this case, a final judgment of divorce provided that “The parties shall cooperate to market the marital home for a sale. They shall equally divide any proceeds of sale and shall equally be responsible for any debt arising from the sale”

On appeal, the former husband argued that the final judgment failed to address (1) who would be responsible for paying the late association fees, (2) who would be responsible for paying the principal, interest, taxes, and insurance pending the sale in order to keep the marital home from being foreclosed, and (3) what would happen if the home did not sell.

The court agreed that these were important questions that remained unanswered, which should have been addressed in the final judgment or the marital settlement agreement. As a result, the case was remanded for clarification of the issues concerning the payment of the expenses and what would occur in the event that they are unable to sell the marital home within a specified time as determined by the court.

Trial Court Failed to Include a Deadline for the Refinancing or Sale of Marital Home in Final Judgement

Gulledge v. Gulledge 82 So. 3d 1113

In this case, the former Husband challenged the final judgment dissolving his marriage due to the trial court failing to set a deadline for the refinancing or sale of the marital residence, among other issues.

The parties were married for thirty years and had two children together. After filling for dissolution of marriage, both parties pleaded for exclusive possession of the marital residence and for partition of the residence for alimony and attorneys’ fees. The trial court awarded the Former Wife possession of the marital residence and awarded the Former Husband half of the equity on the home upon the refinancing or sale of the home. However, there was no date for when the sale or refinancing of the home would occur.

The appeals court found that the trial court erred when it failed to include a deadline for the refinancing or sale of the marital home. There must be a reasonable deadline by when the sale must take place if the court orders the sale of the home in their final judgment.

The case was remanded for the trial court to provide a deadline.

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