It’s the Law: Spouse in house may have to pay rent during divorce

Q: I am getting divorced. My wife is currently living in our house and I am renting an apartment. It does not seem fair that she gets to live rent free. Shouldn’t she have to pay me rent, at least for my half of the house?

A: When two people own property, each owner has equal right to use the property. If one owner has exclusive use of the property, that owner is not obligated to pay rent unless he receives rent or the possession is adverse the rights of the other owner or is the result of some action preventing the other owner from using the property.

Action to prevent another owner to occupy is known as ouster. Ouster need not be by court action, but it must be communicated. Ouster can exist where one owner takes possession and advises the other that he will retain possession exclusively. As long as the other owner has the right to possess and could occupy at the same time, there is generally not an ouster. This holds true in divorce cases where one spouse often moves out of the marital home voluntarily.

Mere possession of property by one owner is not enough to be an ouster. Possession must be clearly under a claim of exclusivity or so open and hostile as to lead to conclusion of exclusivity.

If the owner occupying the property asks the other owner to contribute to costs of improvement, repairs or maintenance, the claim may be offset by the fair rental value which exceeds the possessing tenant’s proportionate share of ownership.

The rules in a divorce situation are somewhat different, since the co-owners in those cases generally have issues beyond mere ownership of property. In the case of Kelly versus Kelly, the final judgment of divorce gave the wife exclusive possession while the parties child was a minor. After the child reached majority, the court ordered the property sold and the proceeds divided between the former spouses. The former husband claimed rental value as an offset. The Florida Supreme Court denied the husband’s claim. The court explained that right of an out of possession owner to credit for rent “depends on the circumstances.” If the co-owner is ousted by court order following marriage dissolution, and no reimbursement for rent is provided in the judgment, it is assumed the judge intended that there be no rental reimbursement or credit. However, those cases are limited to final judgment of dissolution.

Another Florida case has explained that where possession is awarded for residence of at least one minor child, when the minor child leaves home to live with the other spouse a claim can be made. In that case, failure to provide for rent in the final judgment is still fatal to a claim for rent, but the out of possession owner can claim one half the rental value of the marital home to offset claim of the resident spouse for costs of improvements and repairs after the minor child move out.

If a final judgment of dissolution does not award the marital home to either party or make any order as to possession during minority of a child, the parties own the property just like any other owner. In those cases, right to rent depends on ouster and the out of possession owner will be able to claim fair rental value as a setoff to any claim for reimbursement of repair or maintenance. Remarriage by a former spouse in possession is considered an ouster for these purposes.

Where the court awards exclusive possession to one party and requires that party to make mortgage payments until the property is sold, the party in possession is entitled to credit for one half of the payments. And, if a non-occupying spouse or former spouse is entitled to rent, that person also gets interest on one half of the reasonable value calculated on each rental payment as it theoretically became due.

In the case of Wolfe versus Wolfe, decided a few weeks ago by Florida’s Second District Court of Appeal, the court addressed a somewhat different issue. In Wolfe, the former wife was awarded exclusive possession of the marital residence in a final judgment for protection against domestic violence. In that judgment for protection, the court did not address rent. The former wife argued that judgment was similar to a divorce judgment and that the judgment’s failure to address rent meant no rent should be paid. The appellate court disagreed and upheld an award of one half of fair rental value to the former husband, when the former wife’s exclusive possession was based on a judgment for protection against domestic against domestic, not a final divorce judgment.

As you can see from the foregoing, facts and circumstances in each particular case are very important to the ultimate decision. I suggest you discuss your situation with an experienced attorney for specific advice concerning your situation.


William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to or by fax to (239) 642-0722. Read other columns at

© 2008 All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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