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Property Division

In Florida, the division of property as part of a divorce is called “Equitable Distribution”. The first step is identifying what are marital assets and marital debts; then valuing the assets; and then deciding who receives which assets and is responsible for which debts. The starting point is a 50/50 division of the net assets, but there are circumstances which support a different division (see Florida Statues § 61.075(1) which lists factors for the court to consider).

Marital assets and debts, include:

  • assets and debts acquired or incurred during the marriage, jointly or in either spouse’s name;
  • the increase in value of a “non-marital” asset, as a result of marital labor or funds;
  • gifts from one spouse to the other during the marriage;
  • and retirement benefits/accounts earned or accrued during the marriage.

Some significant items that are not marital assets are: inheritances or gifts from outside the marriage to one spouse that are kept separate; and income from non-marital assets, if the income is kept separate from the marriage, and not used by the spouses during the marriage as martial money to support the family. This relates to the issue of “commingling” of assets, where non-marital assets are treated by the court as marital assets, because they were in effect made a part of or “gifted” to the marriage.

Two sections of the website – Distribution of Businesses, and Pensions, Retirement Accounts and Stock Options provide more information about these two areas. Another issue that is important to many spouse is how to handle the marital home. Sometimes one spouse receives the home as part of his or her distribution of marital assets, and then agreements need to be reached regarding when a refinance needs to be accomplished if there is a mortgage, and how to address any anticipated difficulties in refinancing.

If one spouse receives the net-equity in the home as part of his or her distribution of marital assets, then the other spouse needs to somehow receive an equal share of assets by receiving other assets, receiving their share of the net-equity in the home via a cash payment or payments, or for example by the spouse receiving the home taking on more than half of the marital debt.  There are other options as well involving trading off shares of funds in retirement accounts for other assets, or for alimony (and then “present value” calculations if the scenarios involve funds to received in the future, e.g. retirement payments) — for example, if one spouse receives the net-equity in the marital home, then the other spouse could receive more than half of the funds in a 401k account acquired during the marriage.  There can be a similar arrangement regarding alimony, e.g. receiving a lump-sum payment or an asset in lieu of all or a portion of alimony.

There is a lot of flexibility in how to structure each spouse’s receiving their share of net marital assets and liabilities, especially when the parties reach a settlement outside of court — there is less flexibility usually when the decision is made by a Judge.

Regarding the marital home, a  court can award “exclusive use and occupancy” of the marital home for a period of time to one spouse in certain circumstances; and where there are minor child the court can require that the house be retained for some period of time for the benefit of the children.

Call me at (954) 636-7498, or use the contact form, and we can discuss the Equitable Distribution issues in your case.

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