During a pending divorce in Florida, often, one of the parties will decide to move out of the marital home. (See our post on What Happens If I Move Out During the Divorce?) There are varying rationales as to why individuals involved in a divorce choose to leave the marital home during the process; however, one of the most consistent and pressing concerns that each party in this situation—-whether it is the spouse moving out or the spouse staying in the marital home—is how the mortgage and the household expenses will be paid during the pendency of the divorce.
The Short Answer
Both parties are expected to contribute to the shared financial obligations of the marriage and these should continue to be paid as they were during the marriage.
The Role of Standing Administrative Orders
The majority of counties in Florida have standing administrative orders that go into effect, and that parties are ordered to comply with, immediately upon the filing of a dissolution of marriage action. The courts take these standing administrative orders very seriously. The person filing the divorce action, or their attorney, receives a copy of the order at the time they file the petition for dissolution of marriage, and the other party must be served a copy of the order along with the petition and other initial documents. The provisions of these standing orders that are pertinent to the question of who pays for the mortgage and household expenses during the divorce involve “maintaining the status quo” and “dissipation of assets.”
Maintaining the Status Quo. The overarching purpose of these standing administrative orders are to maintain the stability of families going through a divorce. For instance, in the Ninth Circuit Court’s standing administrative order, some of the expressly stated purposes are to “provide guidance to parties in a dissolution of marriage actions” and “to help parties pattern their behavior in ways that reduce conflict.” Further, the order states that “it is in the best interests of the parties and children. . . that parties learn about the . . .duties and responsibilities of litigation.” According to the Ninth Circuit standing administrative order specifically, “Food, shelter, utilities, transportation and necessary medical expenses shall continue to be paid as they were during the intact marriage until further order of the Court or written agreement of the parties.” [1] (emphasis added).
This bolded and italicized language means that if during the time the parties were living as a married unit, the mortgage and household expenses were paid out of, for example, a joint account in which both parties’ incomes were deposited, then upon the filing of a divorce, both parties should continue to pay their share of these marital expenses, even when one of the spouses moves out. In the scenario where one spouse earned all the income while the other stayed at home raising the children, technically, all the household expenses were being paid by the earning spouse; however, all of those funds were considered marital. Thus, in order to comply with the standing administrative order, the earning spouse would still be obligated to pay all the household expenses because that is how it was done during the “intact marriage.”
Dissipation of Assets. The other consideration of the courts’ standing orders as to the parties paying the mortgage involves the concept of one party “dissipating” a marital asset. For most couples divorcing, the marital home is their largest asset. If, for instance, one of the spouses refuses to pay (and has the ability to pay) their portion or the entire portion of the mortgage on the marital home, whatever was the case during the marriage, that spouse could be viewed as intentionally dissipating or disposing an asset. Many times, this situation will occur where the earning spouse moves out of the marital home into another residence, refuses to pay the mortgage, leaving the spouse who perhaps had never worked during the marriage and without a way to pay the mortgage, and essentially obliterating the equity in the home should the home go into foreclosure. The Ninth Circuit also states that it is in the best interests of the parties and children. . . “that the parties preserve their assets…” Further, the standing order states, “Neither party may conceal, damage, or dispose of any asset, whether marital and non-marital, and neither party may dissipate the value of an asset, for example, by adding a mortgage to real estate or by failing to take care of an asset.”[2]
As previously stated, courts take these standing administrative orders very seriously. Therefore, should a party have the ability but fail to pay the mortgage or household expenses as they were paid during the marriage (thus, failing to maintain the status quo) and/or the marital home goes into foreclosure, (thus, dissipating a marital asset) the court could punish these violations the standing order punishable by contempt and impose sanctions.
Other Factors & Practical Considerations Regarding Payment of Mortgage & Household Expenses
Other factors and practical considerations include the following:
- Temporary Support (Child Support/Spousal Support). Payment of the mortgage and household expenses might be regarded as, and perhaps during the finalization of the divorce, credited toward, a parties’ child support or spousal support obligations.
- Equitable Distribution Credits. In the final distribution scheme of the parties’ assets and liabilities, if one party completely paid the monthly mortgage on the marital home, that party may receive a credit for paying the other party’s half. If the house was sold, after payment of the remaining loan amount, closing costs, realtor fees, etc., normally, the parties would split the remaining funds equally. However, if one party solely paid the monthly mortgage payment (thereby, also paying what the other party owed monthly) that party would receive credit for paying the other party’s half and would receive more than half of the remaining funds. Or, that party could receive more from another marital asset.
- Maintaining Creditworthiness. Both spouses’ credit may be affected if the mortgage payments are not maintained.
- Mediation Before Court Intervention. Lastly, if the mortgage and other household expenses are not being paid in violation of the courts’ standing administrative orders, the majority of courts require that you first attempt to resolve these issues at mediation prior to seeking the courts’ help.
During a pending divorce, the issue of which party should continue to pay the mortgage and household expenses, especially where one party has moved out of the marital home, is multifaceted. Individual circumstances, standing administrative orders, and how these things were customarily paid while the parties were together, all play a role in determining financial obligations during the pendency of the divorce. Also important is how these payments are ultimately regarded in the finalization of the divorce. Making informed decisions with knowledgeable advice is paramount for your future. If you would like to discuss this or any other family law matter with the attorneys at Artemis Family Law Group, please schedule a consultation today.
[1] The pertinent provision in the Eighteenth Circuit’s standing administrative order states: “These restrictions (not selling, damaging, disposing, etc. any marital or non-marital property) exclude cash, checking accounts or other sources of funds customarily used to pay ongoing living expenses of the parties or marital debt or other reoccurring marital obligations of the parties.”
[2] The pertinent provision from the Eighteenth Circuit’s standing administrative order states: “Neither party shall sell, donate, pledge, conceal, damage, encumber, or otherwise dispose of any marital or non-marital property without the prior written consent of the other party or court order.”