I heard this question today, and I told my prospective client that I get this question so often I should probably put something on my blog about it. There are many myths regarding this area of divorce law. The question I usually get is, "if I move out the martial house because _________ fill in the blank, (usually the reasons are too much fighting, I can't take it anymore, I'm afraid that someone will get arrested if I stay) will the court think I've abandoned the my house, and will I lose any legal or financial interest in the property?
The short answer is, "no."
But that answer requires some explaining: did you intend never to return and make some place else your homestead or were you doing it to facilitate a more peaceful and less stressful divorce? Simply moving out of a marital residence, under Florida law, does not constitute abandonment. In other words, if a moving spouse has a title interest in the leasehold or fee simple property, he/she does not lose rights by vacating during the divorce process. On the other hand, if your spouse has moved to Utah about 10 years ago and never paid any property taxes or mortgage payments on the marital home since he's left, has a home out in Utah titled in his name, and basically told you - "you can do whatever you want with the house" - we can make a fairly good argument for abandonment.
There are many cases under Florida law that require an "intent" to abandon property by never returning to it and establishing a homestead somewhere else. In Bobo v. Vanguard Bank and Trust Co., Inc., 512 So.2d 246, Fla 1st DCA, 1987, that court held that abandonment of property requires showing of actual acts of relinquishment accompanied by an intention to abandon. Additionally in
In re Estate of Melisi, 440 So.2d 584, Fla. 4th DCA, 1983, held that that the Owner may, in case of divorce, be precluded from residing on homestead with family of which he is head due to award of exclusive possession to other spouse; homestead character of property is in that case not abandoned. What these cases are really saying that abandonment really requires an intent never to return, not just moving out as part of the divorce process.