Thank you for your patience. Before dividing property, a couple must determine whether either spouse owns any of the property separately. Separate, or “non-marital,” property is not subject to division in divorce. Property is separate if one spouse owned it before marriage or acquired it during marriage as a gift (not including gifts from the other spouse) or by inheritance. Separate property also includes:
- assets and debts a couple defines as separate property in a valid written agreement (a premarital agreement, for example)
- income from separate property, unless the spouses have treated the income as marital property, by “commingling” it, for example (see below), and
- items exchanged for or purchased with separate property.
Property acquired during the marriage is marital property.
Couples can make their own agreements about dividing property either on their own or with the help of a mediator. Courts generally uphold such agreements as long as they are in writing and each spouse has had an opportunity to consult with an independent attorney. If a couple can’t reach an agreement, an arbitrator or judge will decide. As stated above, assets are usually divided equally; however, the arbitrator or judge can make an unequal division after considering all of the relevant circumstances, including the following:
- the length of the marriage
- each spouse’s overall economic circumstances
- the desirability of allowing the couple's minor children, or either spouse, to continue living in the marital home
- each spouse’s contributions, including improvement of marital or non-marital assets, and contributions to the marriage either as an income-earner or as a parent or homemaker
- whether either spouse interrupted a career or education during the marriage or contributed to the other spouse’s career or education
- each spouse’s debts and liabilities, and
- whether either spouse intentionally wasted or destroyed marital assets either after the divorce petition or within the two years preceding it.
Now the Court may only divide marital assets. In general, marital assets are assets acquired or purchased during the marriage, using funds earned or acquired during the marriage. Also included in the definition of marital assets are “the enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” See F.S.A. 61.075(6)(a)b
So, if you have premarital home that is not paid for at the time of marriage i.e. it is encumbered by a mortgage, and you are paying for the mortgage with money you have earned during the marriage, you are increasing the value of the marital home or the equity of the home with the “contribution or expenditure of marital funds” pursuant to F.S.A. 61.075. This increase in value is marital. It does not change the character of the asset itself. In other words, the spouse cannot be awarded the home itself, just a portion of the increase in value.
As a practical matter, if he could buy her out of the equity, he'd probably get the property because it's in his name. But it's also the "marital residence", meaning that she can stay until a court orders her to leave. And so it's possible that during the divorce action itself the court would allow her to stay in the property, especially with children of the marriage. So the key is that she can stay until a court tells her that she would have to leave, and even then the court would generally make him pay for it (assuming he's the primary or sole breadwinner in the relationship).
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.
Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.
Thank you, ***** ***** luck to you!