Dividing Marital Assets And Debts
An important part of any divorce is the division of the assets acquired and the liabilities incurred during the marriage. In Florida this is called equitable distribution. Equitable distribution can be an acrimonious part of the proceedings. Because parties often lack understanding regarding the law of property division, they may make inappropriate decisions which may ultimately be detrimental to them. Understanding the issues surrounding the division of assets and liabilities is important when contemplating or going through a dissolution of marriage.
Florida follows the equitable distribution model of property division which is set forth in Florida Statute 61.075. The Florida court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on certain relevant factors. Including, but not limited to:
- The economic circumstances of the parties;
- Each spouse’s contributions (emotionally, monetarily, and otherwise) to the marriage;
- The length of the marriage and whether or not there are any children;
- 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;
- Any intentional waste or dissipation of marital property (note: this is not intended to be used punitively, due to fault, but is considered in terms of the economic impact of the waste or dissipation in the sense that dissipation might entitle a spouse to a lesser share of the marital property because he or she can be deemed to have already spent or depleted some marital assets or incurred inappropriate liabilities);
- Any interruption of one’s career to take care of children or the household while their spouse attended school; and
- “Any other factors necessary to do equity and justice between the parties.”
This last factor is essentially meant to provide a manner for the court to address unusual issues not specifically covered in the statute.
Florida law sets apart each party’s non-marital or premarital assets and liabilities from the equitable distribution scheme. The spouse who claims that an assets or debt is non-marital has the burden of proving that to the court. There are many complicating facts in determining what is or is not a marital asset and, in certain circumstances, an asset may have both a marital and non-marital component. For example, even if an asset was acquired prior to the marriage, if it was improved or the value increased during the marriage due to the contribution of marital funds or labor, the increase in value may be considered marital. This type of appreciation is referred to as active. An example of potential conversion of a non-marital asset into a marital assets is the mixing of marital funds ( i.e. salary earned during the marriage) into an otherwise non-marital bank account. This is something that spouses often do without realizing that their non-marital account is being “tainted” and may be considered, in whole or part, converted to a marital asset.
Enlist An Experienced Attorney
It is important to know how to structure the property division in a divorce case to ensure your assets are best protected. Your divorce attorney must be able to analyze the assets and liabilities to determine if they are marital, non-marital or have components of each. The attorney must also have the ability to obtain the necessary evidence to prove the position to the court that is both supported by the evidence and is most advantageous to you. This is true both for presentation of options in settlement and to the court. There may be specific assets, including business interests, that need to be protected from the other spouse and tax advantages which need to be considered in the plan of equitable distribution. The Law Office of Georgia T. Newman regularly associates with well-respected forensic accountants, business and property valuation experts in appropriate cases. This can be particularly important in high asset divorces.
The dedicated West Palm Beach marital property division attorneys at the Law Office of Georgia T. Newman can advise you as to the specific facts and law applicable in your situation and assist in preparation for settlement or presentation to a court. We strongly advocate for what we believe is the best possible outcome for our clients, providing each client with individual attention. We practice throughout Palm Beach County and Martin County. Contact us today to set up an initial consultation.