Property Distribution In Divorce
By Orlando Property Distribution Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
The Equitable Property Distribution Principles In a Divorce
If you are considering a divorce, your need to first be aware of a few general principles regarding how its property distribution or divisions is regulated by Florida family law. But remember that it takes an experienced Orlando divorce attorney to be aware of its many nuances. Family law attorneys refer to the distribution of assets and debts in a divorce as “equitable distribution”, as governed by Chapter 61.075 of the Florida Statutes.
Outline of the Equitable Property Distribution Process
First, the two spouses in a divorce turn in their forms listing their assets and liabilities. If they cannot come up with a negotiated equitable property distribution agreement during the mediation phase, the case goes to trial where the family court judge determines (1) which are themarital assets and debts and (2) which ones and how much belongs to each spouse individually.
The value of the marital assets, net of debts will be split 50-50, while the remaining individual net assets will be assigned solely to the spouse whose name is attached to them. For example, the SUV that the married couple purchased shortly after the marriage in anticipation of starting a family must be accounted for in the equitable distribution. Conversely, the Ford Mustang that the husband purchased prior to the wedding (net of the car loan owed on it) remains completely his (except for any increase in value, as explained below).
Generally, all assets and debts acquired between the date of the marriage and the date of the filing of the divorce will be subject to equitable distribution, and therefore, require a 50-50 split.
Naturally, many assets and debts cannot be practically split in half, since assets like cars and houses cannot be divided up like money. Instead the divorcing spouses will each leave the marriage with a roughly half of the total value of marital assets net of debts. This sometimes requires that one spouse will be assigned more than half of the net assets in the property distribution or division. But that spouse has to pay to the other spouse what is known as an equalizer money payment for the half of the difference between the value of the net assets received and half of their total value.
The divorcing spouses often dispute the respective values of the marital properties, particularly their home. In these situations, the parties and their attorneys often have to agree to hire (or seek the court appointment) of a property appraiser.
Speaking of houses, they present a notable exception to the general rule regarding the identification of marital assets. When a spouse purchases a home prior to the marriage, the other spouse can still acquire an interest in that home in if the spouse owning it subsequently puts the other spouse on the title to the home, subjecting it to becoming part of the 50-50 equitable distribution process.
Increase in Value of Property After the Marriage
The spouse that is not the homeowner is also entitled to 50% of the passive appreciation of the home's value since the date of the marriage. While this will probably not yield a high payout, it is still worth noting because many clients and their family law attorneys overlook this provision of the law.
Similarly, the increases in the value of many other assets (such as 401K's, stocks, pensions, etc.) acquired prior to the marriage do not escape equitable distribution. Spouses and their attorneys must establish how much each account was worth on the date of the marriage, and how much it was worth on the date of separation or filing (and some times on the day of the trial). The non-account holding spouse can rightfully demand a 50% property distribution of the increase in the account's value between those two dates.
Limitations on Sale of Assets Prior to the Divorce
Finally, spouses cannot “sell off” assets either immediately before the filing, or during the divorce proceedings. For example, if a spouse's mandatory financial disclosure reveals that he or she drained the parties' joint bank account shortly before filing the divorce or leaving the home, you can safely assume that a judge will award half of the dissipated amount to the other spouse.
Also a spouse who sells a car during the divorce process, or even conducts a garage sale, will be violating an administrative order barring such transactions. Not only will this spouse have to account for half of the value of the sold assets, but is also likely be subject to a motion for contempt. In short, as your family law attorney, I strongly advice you to avoid the temptation to hide or transfer assets right before, or during a the period when the divorce is in process.
For a discussion of the enforcement of property distribution court decrees in family law cases please see Post-Judgment Enforcement of Decrees.
How We Can Help
There are many other factors considered by judges as part of the “equitable distribution” rules. Only an experienced family law attorney can guide you through this process to successfully protect your rights.
If you are confronted with the possibility of a divorce and have questions about the equitable distribution of your marital assets and debts, feel free to contact me at AAA Family Law at (407) 260-6001 and schedule an initial consultation. See Our Retainer Fee Policies.
During this consultation I will: (1) listen to your description of the family issues that are leading to your divorce, and ask you some questions, (2) present you with a plan on how to address your issues through the legal process, (3) encourage you to ask me questions about these issues and (4) quote you the retention fees I charge. The fee is for a fixed amount that you will be aware of before you sign a contract or make a payment.
We can represent you in family law cases through a trial and, if needed, in appeals to any of Florida's District Courts of Appeal.
Our attorney retainer fee for divorce cases up to the mediation stage ranges between $2,400 and $3,600 depending on its complexity. An additional retainer amount is set before the trial if the divorce settlement is not achieved during mediation. Read Our Retainer Fee Policies for the the court costs and range of attorney retainer fees costs if the case goes to a trial).
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