The short answer is the spouse vacating the home should usually be given some sort of credit to offset the value of remaining in the home.  Typically, the Court accomplishes this in two ways.  One way is through spousal support, the other is through equitable distribution.  A recent case dealt with this issue through equitable distribution. The court ordered the marital home sold; however, it permitted the husband to remain in the home until it was sold, provided he paid the mortgage, taxes, and other maintenance fees.  The court did not allow the husband any offset in the equitable distribution finding only that it was offset by the fair rental value of the home. The court did not make any findings as to the amount of the fair rental value for the home.

Mortgage and other maintenance expenses do not necessarily equal the fair rental value of the home.  When the court is making a distribution such as this it is necessary for it to determine the fair rental value and make an offset equal to the deficiency or excess of the payments made by the spouse remaining in the home and the fair rental value of the home.

See, Tuomey v. Tuomey, 36 Fla. L. Weekly D2539 (Fla. 5th DCA 2011).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.