By Florida Divorce Appeals Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
AAA Family Law Can Represent You In Divorce Appeals Anywhere In Florida
The Two Steps to Equitable Property Distribution in a Divorce
Properties (net of debts) acquired by a divorcing couple since their marriage are known in Florida family law as “acquired assets" (acquired properties). If a divorcing couple owns acquired properties, the family court performs this two-step analysis to determine how they are distributed equitably: (1) identifying them as either marital or not marital, (2) assigning a value to each marital properties. For more information on the this topic read Property Distribution In Divorce.
With a few exceptions, “equitable” means an equal property distribution of the marital assets (net of debts) between the divorcing spouses. However, before it can do that, the family court must identify them and value them. A family court can open the door for an appeal with either: (1) a mistaken categorization of a property as marital or non-marital or (2) an erroneous valuation of the property or marital asset.
(1) Identifying Marital Properties for Distribution
Family courts usually identify marital properties quite easily because they are governed by a simple rule: Their total property valuation (net of debts) is deemed marital if acquired between (a) the date of the marriage and (b) the date of (i) the initial filing of the petition for divorce, or (ii) the entry in to a valid separation agreement (which is rare). In the vast majority of divorce trials, the family law judge merely has to determine what properties the couple acquired from the wedding date to the date of the initial filing.
As you might expect, there exists a few exceptions even to this rule (such as, for inheritances and portions of litigation awards), but for the most part, the family court simply looks at the two critical dates mentioned above to identify which properties are marital Because this task is a clearly defined standard, using objective factors and leaving little or no room for varying interpretations it is called a bright-line legal rule. For these kinds of rules appellate courts review errors in the identification of marital properties with a de novo standard, meaning “starting from scratch”. Therefore, the appellate court gives no deference to the family court decisions.
(2) Valuing Marital Properties
On the other hand, family courts enjoy much more discretion in their valuation of marital properties. In fact, the controlling law, Section 61.075(7), Florida Statutes allows a family court to choose their valuation date as whatever it deems “just and equitable under the circumstances”.
In practice, the family court may determine that the properties should be valued at the time that the parties separated, the date of the initial filing, or even the date of the trial. While there are no bright-line rules, the Florida District Courts of Appeal have ruled that when a property has passively appreciated (as in a marital home) it should be valued at the date of the trial.
Conversely, if a spouse has actively added to the value of a marital property since the separation or filing, (for example, contributing to a 401K) then he or she should be rewarded for that by keeping all of its increased value and valuing it at the time of the separation or filing.
Because the valuation of marital properties is much more complex and factually-based, appellate courts grant the family court more leeway with this issue. Appellate courts will only reverse their valuation if it lacks substantial, competent supporting evidence.
How We Can Be of Service
If you have any questions about appealing the property distribution part of a divorce, I encourage you to call me, Eduardo Mejias, AAA Family Law at 407-260-6001 and schedule an initial consultation.
At the consultation I will: (1) listen to your explanation of what part of your cases you are considering appealing, (2) evaluate the likelihood that the appeal will succeed, (3) recommend a course of action and (4) quote you a fixed retainer fee before you sign any papers or make any payments, not an hourly rate whose total cost would be unpredictable.
Our retainer fees for family law appeals of final orders in Florida range between $3,600 and $6,000 depending on their level of complexity of your case. For non-final orders they are between $2,400 and $4,800. See Family Lawyer Retainer Fees for more information.
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