Property Division

Orlando Marital Property Division Lawyers

When it comes to marital property division in a divorce, my goal is to minimize the harm to your financial security and help you keep the assets that belong to you. Without strong advocacy, divorce can have a disastrous effect on your financial future.

Equitable Distribution

In determining equitable distribution of assets and debts, an analysis of the following must be made with respect to each separate asset and liability:
  1. Identification;
  2. Classification (Marital or Non-marital, or a combination of both);
  3. Valuation; and
  4. Distribution

Identifying assets

Each party in a dissolution of marriage action is required to file a financial affidavit and provide mandatory disclosure of all earning statements, bank accounts, investment accounts, retirement accounts, tax returns, loan applications, deeds, promissory notes and other assets and liabilities. All assets and liablities need to be disclosed by the parties in a dissolution action so that they may be classified as either marital or nonmarital. If necessary, I will use business valuation experts and forensic accountants to ensure that your spouse provides a full and fair disclosure of assets. Once all of the assets have been identified, they have to be classified as either marital, non-marital (or separate); or a combination of marital and non-marital. Only the marital assets will be distributed to the Court, as non-marital assets will be set aside to the spouse owning said separate asset. The Court is required to determine the marital or non-marital status of assts or liabilities as of the date of filing of the petition for dissolution of marriage, or date specified in a separation agreement, if any. The Court does not have discretion to use any other date for classification. However, it should be noted that the Court does have discretion to determine the date of valuation of assets and liabilities.

Non-marital/Separate Property and Liabilities

Separate property includes all of the property you brought to your marriage, including real estate, stock, money and other assets. Separate property is yours to keep if you divorce, as long as you do not commingle those assets with marital property. Florida Staute Section 61.075(6)(b), specifically defines “non-marital assets and liabilities” as:
  1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
  2. Assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
  3. All income derived from non-marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
  4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
  5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a non-marital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to Florida Statute Section 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.

Marital Property and Liabilities

Marital property includes all assets acquired during the marriage, including things like stock options, 401(k) plans, IRA accounts and pension plans. In addition to assets, debts and liabilities must be divided equitably. Florida Staute Section 61.075(6)(a), defines marital assets and liabilities as the following:
  1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
  2. The enhancement in value and appreciation of non-marital assets resulting either 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.
  3. Interspousal gifts during the marriage.
  4. All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
Furthermore, Florida Statute Section 61.075(6)(a) states that all real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is non-marital. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence. If there is no prenuptial agreement determining how marital property should be divided, Florida courts will consider the contributions each party made to the marriage. Those contributions include providing support for a spouse’s career or education, caring for children, homemaking and any interruption of career or educational opportunities.

Valuation

The date for determining the value of an asset or the amount of a liability identified or classified as marital is whatever date the judge determines is just and equitable under the circumstances. It should be noted that different assets may be valued as of different dates, as may be just under the circumstances.

Distribution

After setting apart each parties’ non-marital assets and liabilities, the Court will begin to distribute the marital assets and liabilities with the premise that the distribution should be equal, unless there is justification for an unequal distribution. In distributing the marital assets and liabilities between the parties, the Court must consider the factors set forth below to do equity and justice between the parties: (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 non-marital 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. The factors listed above may provide the Court with justification for an unequal distribution.