A court judge must first set apart to each of you, your non-marital assets and debts. Then, your judge will divide your marital assets and debts beginning with the idea that the division should be equal.
If there is justification or a reason to divide the marital assets and debts in some unequal way, your judge must consider the following list of factors:
THE STARTING PLACE
Dividing assets and debts is an important place to start in a divorce, whether you are trying to handle your own divorce or working with a lawyer. How your stuff is split up will typically impact other things in your divorce.
For example, you might have income producing assets such as rental properties that will affect alimony and child support calculations. Another example would be if you receive dividends or interest on investments, that is income that will affect your divorce.
IDENTIFICATION & CLASSIFICATION
Your judge will start by identifying all significant assets and debts. Next, they will classify your assets and debts as either marital or “non-marital.” Once they are identified and classified, they must be valued.
The cut-off date to be used to classify assets and debts is whichever of the following occurs first:
- A date established by a written separation agreement
- The date of filing for divorce
Most people do not sign a valid, written separation agreement prior to divorce. So, the date of filing for divorce is used most often.
Other people separate for long periods of time before one of the spouses files for divorce. You will be considered married during your physical separation and any assets acquired or debts incurred during your separation will probably be considered marital.
Your judge will then assign a value to each significant asset and debt. The value given to each asset and debt is your responsibility. You must provide your judge with substantial, competent evidence of the values you want assigned. This can be appraisals, completed sales of similar assets, or account statements.
The date a judge may use to value a assets and debts is any date or dates the judge determines fair under the circumstances. This means that different assets may have different valuation dates.
Marital assets and liabilities include the following:
- Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
- The enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
- Interspousal gifts during the marriage.
- All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
- All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage.
- All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage.
The day you were married is important. The day one of you files for divorce is also important.
Your court judge will presume that any assets either of you acquires or debts you incur during your marriage are “marital.” If you are planning to argue that an asset or debt acquired or incurred during your marriage should be categorized as “non-marital,” it is up to you to prove it with evidence.
DOWNPAYMENT ON A HOME
Sometimes a spouse will try to claim that the down payment he made on the marital residence purchased during the marriage is “non-marital.” A court judge is going to require him to provide evidence or proof. If the home is titled in both your names, your judge is going to presume that he intended to gift that down payment to both of you as a couple. If that presumption is not overcome, his down payment will be considered marital and will be split between each of you.
WHAT ABOUT FUTURE OR POTENTIAL ASSETS
A spouse is not entitled to the other’s future income or earning ability. However, accrued sick leave and unused vacation time could be a marital asset and may be split between each of you. If the sick leave and unused vacation can be valued, it is likely to be fairly divided.
FUTURE PUBLISHED BOOK
You may be entitled to a fair split of the value of your spouse’s yet-to-be-written book. There is at least one case in Florida where a husband claimed an interest in his Wife’s unwritten and unpublished book.
His Wife’s sister died during the marriage and she kept a journal about her sister’s death during the marriage. Her husband was claiming that a portion of the value of any future book based upon the journal written during the marriage should be his.
There may be a situation when each spouse may be responsible for future, contingent liabilities.
One Florida case dealt with a situation where a Wife, who was a medical doctor, wanted her husband to be partly responsible for any future malpractice claims against her for surgeries and other medical procedures she did during the marriage.
Ultimately, he was not held responsible because a liability had not been incurred. Future malpractice claims were merely a potential future liability.
ASSETS NOT VALUED
A court judge can still split up assets between each of you even if there is no value. If your judge categorized an asset as marital and there is not value established for the asset, the judge can still award a one-half interest to each of you.
HOME WITH NEGATIVE VALUE
After the great recession that began around 2008, many people were in a situation where their home value was less than what they owed on the mortgage. In other words, they had negative equity.
A court judge will most likely determine that the negative equity is a marital liability subject to division between each of you.
JOINT TAX LIABILITY
If you incur a tax liability during your marriage, that liability will most likely be categorized as marital and split between each of you. It does not matter who had more income during a particular year or how the taxes were filed.
ADULT CHILD’S STUDENT LOAN
If you or your spouse incur liability for an adult child’s student loan during the marriage, your court judge will probably categorize that as a marital debt and split it between you and your spouse.
SPOUSE’S STUDENT LOAN
A spouse’s student loan debt incurred during a marriage is marital debt and will be split between each of you.
Some people try to argue that they will not receive any benefit from their spouse’s education related to the student loan, so they should not be responsible for the debt. This argument will not work.
GIFTS FROM PARENTS
If you receive a gift from a parent directly to you, that is likely to be considered a non-marital asset. However, if you receive a monetary gift from a parent directly to you and you subsequently comingle the funds by depositing them into a joint, marital account, your court judge might consider those funds to be marital and split between each of you.
NON-MARITAL DEBT DURING MARRIAGE
If debt is incurred during your marriage for the purpose of paying non-marital expenses, that debt will probably be categorized as “non-marital.”
For example, if your husband obtains a credit card during the marriage and the purpose of the credit card is to pay for non-marital expenses, that credit card debt will likely be non-marital and you will not be responsible for any of the debt.
ASSETS ACQUIRED AFTER DIVORCE FILED
If you buy a car after one of you has filed for divorce, neither the car nor the debt will be considered “marital.” The date a divorce is filed is what we call a “cut-off” date. This is used to draw a line in the sand as to what dates will be used for marital assets and debts.
CAN YOU GET YOUR HUSBAND’S NON-MARITAL PROPERTY
No. The court judge has no power or authority to award you your spouse’s non-marital assets. However, if you and your husband agree, then yes, you can get his non-marital asset(s).
Sometimes a spouse will sign a mortgage but not the promissory note. Signing a mortgage alone does not mean you assume the mortgage liability. If you both sign a mortgage and a note, then you are both responsible for the mortgage debt.
If you remain in the former marital home and make the full mortgage payments by yourself without help form your spouse, you may be entitled to one-half of the mortgage principal paydown. You are not entitled to a credit for the full amount of the mortgage payments, and you are not entitled to 50% of the mortgage payments.
The best approach to keep things simple is to value the home closer to the completion of the case because a more current value will include any mortgage principal paydown. However, if one spouse files for divorce and then the other spouse puts their efforts into improving the home or repairing the home, any appreciation due to the improvements or repairs is non-marital and the value should be set aside to the spouse who expended the non-marital efforts.
You can see that issues like this can be very complex and confusing.
Problems arise when you or a court judge tries to use two different dates to value the home and then the value of the mortgage principal paydown.
ENGAGEMENT AND WEDDING RINGS
Engagement rings and wedding rings are most often considered non-marital gifts. Therefore, they belong to the person who received the ring(s) and the value is not to be split between you.
If one or both of those rings are converted into another piece of jewelry during the marriage, the additional jewelry value will be marital and the initial engagement and weddings rings will stay non-marital.
WORKER’S COMPENSATION & PERSONAL INJURY SETTLEMENTS
The nature of the award is critical in these situations.
The injured spouse will get some of the settlement and the uninjured spouse may get some of the settlement, depending upon how the award is categorized.
Under the approach our Florida Supreme Court has directed court judges to use, the damage award is allocated in accordance with the following:
- Non-marital property of injured spouse – Noneconomic compensatory damages for pain, suffering, disability, and loss of ability to lead a normal life and the economic damages which occur subsequent to a divorce, including the amount of the award for loss of future wages and future medical expenses
- non-MARITAL PROPERTY OF UNINJURED SPOUSE – loss of consortium
- MARITAL PROPERTY SUBJECT TO DIVISION – the amount of an award for lost wages or lost earning capacity during the marriage and medical expenses paid out of marital funds during the marriage. It also includes those funds for which no allocation can be made.
It is possible for separate, non-marital property to become marital when non-marital assets are commingled or mixed together with marital assets.
For example, if you have an account titled just in your name and it is a mixture or blend of marital and non-marital funds, the entire account can become marital and subject to a fair division of its value between you and your spouse.
If you sell a home that you owned prior to getting married and then either deposit those funds into a joint account with your spouse or use the sale proceeds as a down payment toward a new marital home, the money you received from the sale of your separate, nonmarital home will lose their character and be considered a marital asset which will be fairly divided between you and your spouse.
ENHANCEMENT IN VALUE
Enhancement in the value of an asset, also known as appreciation, may be marital and subject to a fair split between you and your spouse.
If marital money or labor has enhanced the value of a non-marital asset, the increase in value may become a marital asset.
UNEQUAL DISTRIBUTION FACTORS
There are a myriad of reasons to make an unequal distribution which include:
- (a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
- (b) The economic circumstances of the parties.
- (c) The duration of the marriage.
- (d) Any interruption of personal careers or educational opportunities of either party.
- (e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
- (f) The desirability of retaining any asset (including an interest in a business, corporation, or professional practice) intact and free from any claim or interference by the other party.
- (g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
- (h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
- (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
- (j) Any other factors necessary to do equity and justice between the parties.
If your spouses income is substantially higher than yours, that by itself is not enough justification for you to receive an unequal distribution of the marital assets.
If you have a short-term marriage such as one year and is a disparity in your respective ages, an unequal distribution might be appropriate.
CONTACT A SKILLED, AGGRESSIVE, COMPASSIONATE AND EXPERIENCED ORLANDO DIVORCE LAWYER TODAY
Spousal support can be complicated. It is important to pick a good divorce lawyer who can be your guide and who can help you identify your rights and responsibilities that you might overlook trying to do it yourself. Having an attorney who focuses their practice 100% on family law and divorce is essential because you need a professional who understands everything about divorce. The anger, the fear, the betrayal, and the anxiety about your financial future.
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