Equitable Distribution

March 20, 2012

What are Marital Assets?

Whether or not an asset is “marital” or “nonmarital” is often a key issue in a divorce. Marital assets are generally considered jointly owned by both husband and wife, and it is usually up to the court to decide how those assets will be distributed. Nonmarital assets, however, are considered owned by only one of the spouses and are generally free from distribution in a divorce. You should be aware that liabilities –debts– are treated the same way as assets.

Florida Statute 61.075 addresses this issue and defines marital and nonmarital assets. Marital assets include assets acquired during the marriage, the increase in value of nonmarital assets (if the increase is the result of contribution from both spouses), interspousal gifts during the marriage, and all benefits accrued during the marriage, such as retirement funds, pension, profit sharing, and insurance plans.

Nonmarital assets include assets acquired prior to the marriage, assets acquired during the marriage by gift or inheritance, assets excluded from being considered marital by written agreement (such as a prenuptial agreement), and income derived from nonmarital assets, unless the income was “treated, used, or relied upon by the parties as a marital asset.”

January 30, 2012

Equitable Distribution: What is Equal?

by David M. Goldman

Whether or not an asset is “marital” or “nonmarital” is often a key issue in a divorce. Marital assets are generally considered jointly owned by both husband and wife, and it is usually up to the court to decide how those assets will be distributed. Nonmarital assets, however, are considered owned by only one of the spouses and are generally free from distribution in a divorce. You should be aware that liabilities –debts– are treated the same way as assets.

Florida Statute 61.075 addresses this issue and defines marital and nonmarital assets. Marital assets include assets acquired during the marriage, the increase in value of nonmarital assets (if the increase is the result of contribution from both spouses), interspousal gifts during the marriage, and all benefits accrued during the marriage, such as retirement funds, pension, profit sharing, and insurance plans.

Nonmarital assets include assets acquired prior to the marriage, assets acquired during the marriage by gift or inheritance, assets excluded from being considered marital by written agreement (such as a prenuptial agreement), and income derived from nonmarital assets, unless the income was “treated, used, or relied upon by the parties as a marital asset.”

December 22, 2011

Equitable Distribution: What is it?

by David M. Goldman

Florida is an equitable distribution state, meaning that marital assets are divided on an equitable basis. Or at least that is a court’s objective. Under Florida’s equitable distribution statute, marital property should be equitably divided between divorcing parties.  

Florida Statute § 61.075 requires that a court begin the process of dividing assets and liabilities by setting aside those assets that are defined as “non-marital.” 

• typically those assets which either were owned prior to the marriage or inherited during the marriage and not mixed with marital assets,

November 7, 2011

Who Gets to Keep the Engagement Ring?

by David M. Goldman

There are two situations where you might like to get back the rather expensive ring you bought your bride before your relationship ended: a broken-off engagement or a divorce. The answer to “who gets the ring?” is different in each situation.

Broken-Off Engagement: engagement rings are considered “conditional gifts.” In other words, the gift becomes final upon the condition that your bride eventually marries you. Prior to the vows, however, that condition has not been completed, so you can still revoke the gift. So, if the engagement is called off, you should legally be able to get back the ring.

Divorce: after the vows are said and the marriage license is signed, the condition of that conditional gift has been fulfilled. The ring is now considered a gift. Further, because it is a gift, it is a nonmarital asset for distribution purposes if the two of you ever get divorced. That means that the ring’s value will likely not be split between the two of you during a divorce. Instead, it belongs to your spouse. This was true even in a case (Randall v. Randall) where the ring was the former husband’s family heirloom.

November 4, 2011

Will My Divorce Automatically Eliminate a Former Spouse as Beneficiary of a Life Insurance and Retirement Plan?

by David M. Goldman

Because the beneficiary designation was never updated post divorce finalization, the Supreme Court of Florida has ruled a former spouse still entitled to death benefits payable from a retirement plan. Unambiguous language in the Marital Settlement Agreement can avoid a beneficiary designation even where a spouse has neglected to remove their now ex-spouse.

However, some designations can be revised prior to a divorce, but Federal law does not allow the changing of a beneficiary designation on some financial plans without written spousal consent, which is difficult to get when something like a 401(k) is in dispute. This spousal consent rule can create a small hurdle; most beneficiary designations can be changed and should be as soon as possible after a divorce.

An experienced Florida Family Law Attorney should be sure to ask you about beneficiary designations before finalizing a divorce. Be sure to ask the attorney working on your divorce if you are unsure about certain designations. If you are not currently working with an attorney, the most advisable practice is to secure an experienced Jacksonville Family Law Attorney as soon as possible.

October 24, 2011

If My Spouse Gets To Keep The House, Can I Still Be Held Responsible For The Mortgage? 

by David M. Goldman

The short answer to this question is, unfortunately yes. If, in a divorce, one party is granted sole exclusive use and possession of the former marital home the other party could still be held responsible in the event of a default on the mortgage.

Thus, even if the former marital home is deeded to one party the other party’s name is still on the mortgage and can still be held responsible. If the party with possession of the home fails to pay the mortgage, the bank has the option to come after the other party.

During the divorce proceedings the party without the home can ask for their name to be removed but this is likely not to occur. Also, the Court can order the party with possession of the home to try and refinance to get the other party’s name off the mortgage, but in todays market this is not a likely solution.

October 22, 2011

Los Angeles Dodgers Owner Reaches Divorce Agreement With His Soon To Be Ex-Wife

by David M. Goldman

The Daily Pitch is reporting that Frank and Jamie McCourt have reached a divorce agreement that will give Frank McCourt, the Los Angeles Dodgers Owner, sole control over the Dodgers. Jamie McCourt, on the other hand, will be leaving the marriage with a hefty $130 million in her pocket. The settlement is believed to be the costliest divorce in California history.

As a Jacksonville Divorce Attorney, I can’t help but think of how less costly the McCourt’s divorce could have been had they worked together and agreed to settle nearly two years ago. In Jacksonville, I see clients argue over the most insignificant things because they are experiencing so many emotions due to the divorce. I can only assume that is what the McCourts did, except for on a much larger financial scale.

I personally tell my Jacksonville clients to look at the big picture and to try to take emotions out of the decision making as much as possible. This is often a difficult thing for clients to do, however; I know in the long run it is the best way to go about a divorce.

October 6, 2011

How Can I Hire an Attorney When My Spouse Has All the Money?

by David M. Goldman

When a family is going through a divorce it can be one of the toughest times in a person’s life. Concerns range from child support, alimony, and distribution of assets and liabilities. Many people find themselves so caught up in the emotion of their case that they can overlook very important considerations. That being said, let’s look at a specific example of oversight that could potentially cost a person thousands of dollars.

Say husband and wife are getting a divorce, and at issue is the support due wife after the dissolution. Wife, in her settlement agreement, gets husband to agree to give her a portion of his 401(k), let’s say $50,000, and in turn waives her right to any alimony that she could potentially qualify for. Unfortunately, wife’s attorney forgets to account for taxes inherent in 401(k)’s, and instead of negotiating the taxes into the agreement, the wife ends up paying nearly 30% in tax on the settlement, $15,000. With careful negotiation the husband might have agreed to account for those taxes, thus giving the wife the full value of her settlement.

Issues like the one seen above can be avoided by carefully choosing a Florida Divorce Lawyer who will represent you. An experienced Florida Divorce Lawyer is sure to take the important tax implications into consideration before presenting a proposed final agreement. Contact a Jacksonville Divorce Lawyer to discuss the facts surrounding your case today.

September 9, 2011

How to Get Started With A Divorce

by David M. Goldman

Florida is one of the many states that does not consider fault for grounds of divorce. In other words, you don’t have to show that your spouse has wronged you in any way; you just have to show that the marriage is “irretrievably broken.”

The actual process is relatively straightforward. Either spouse may file the dissolution of marriage, so long as he or she can show that the marriage exists, that one party has been a Florida resident for the past six months, and that the marriage is irretrievably broken. While this process may sound simple, it may involve some unfamiliar procedures, so please speak with a Florida Family Law Attorney before taking any action on your own.

Once the divorce is granted, the court may consider fault in awarding alimony and other asset distributions. An attorney is essential at this stage, as it may make a difference in the amount of money or other assets you have to give to your former spouse. A Florida Family Law Attorney can help explain the best options available to you.

July 6, 2011

Divorce and Alimony

by David M. Goldman

When deciding whether to grant alimony in a divorce case, Courts consider many factors, including the length of the marriage, the spouses’ employment prospects, the age of each party, their standard of living, their marital contributions, their available income and assets, and the fairness of the situation.

Generally, the shorter you’ve been married, the less likely you will be awarded alimony. Similarly, age is important. If one of the spouses is about to retire, alimony might be more likely.

Courts also consider marital contributions. You might complain that your spouse watched TV all day for twelve years while you worked fifty hours a week. You might think this means your spouse should not be entitled to alimony; however, the court will likely not consider this in granting alimony. Similarly, if your spouse ran up huge credit card debt, he or she may still be entitled to alimony. The court might look more favorably to you, however, if those debts were ran up without your knowledge.