Articles Posted in Property Division

For sale signWhat happens to real estate or property that you jointly own when you get a divorce in Florida?  How does the Court handle your property when you and your spouse can’t agree on what to do?  How can it be distributed between you and your spouse?  In divorces, the court will partition your property absent an agreement as to the contrary.  Partition means simply “to divide into parts.”

The Court cannot order partition of your property without it being alleged in your dissolution of marriage petition.  Florida courts have long held that a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes, relating to partition are met.  See Sanders v. Sanders, 351 So.2d 1156 (Fla. 2nd DCA 1977).  The complaint for partition can be incorporated into a divorce petition and no separate filing is needed.  F.S. § 64.041 specifies that the complaint must allege a description of the property, the names and places of residence of the owners, and the share held by each owner.  The partition complaint must be filed in the county where the property is located.

Typically, the parties will agree on a real estate broker to list the property for sale at current fair market price and the parties will split the proceeds according to the parties’ interest in the property (taking into account the costs and expenses put into the property) unless an agreement is made for one party to refinance the home and pay the opposing party their share.  After a divorce, property automatically converts into a tenancy in common and each owner has the right to sell, lease, or mortgage their interest in property.  See F.S. § 689.15.

You may wonder how Florida courts make a decision on what is income and what is not in divorce cases.  In addition, you may wonder how business income is considered in divorce cases by the courts.  The case of Marchek v. Marchek, 159 So.3d 1025 (2nd DCA 2015) gives a great example of what can be considered income, especially when it comes to business income.  In this case, the husband appeals a final judgment of dissolution of marriage to his wife.  The court reversed an equalizer payment of $35,777 to the wife because there was not competent, substantial evidence supporting the court’s valuation of the business income.

business caculateThe husband was an electrician that owned an electrical contracting business where the wife worked handling much of the administration such as bookkeeping, payroll, and accounts receivable for a time.  As of the trial date, the business had a pending job for which it billed $100,000 and accounts receivable of $40,000, some of which stemmed from the pending job.

The problem was the $100,000 for the pending job was the gross amount for the job, NOT a net amount.  The $40,000 accounts receivable figure was the amount the business had already received including the $100,000 job and any others from that same year, and the figure was still only a gross amount, not a net amount.

contract agreementCouples in Jacksonville and the Duval County area may need asset protection options in the event of divorce to eliminate costly litigation. A prenuptial or postnuptial agreement or even irrevocable trusts are great options. However, it is important that an experienced Family Law attorney constructs and reviews these documents.

A prenuptial agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. See Florida Statutes section 61.079(2)(a). A postnuptial agreement is an agreement between spouses who are already married that is effective immediately upon signing. Both agreements are signed with the understanding that they will determine asset and property distribution in the event of divorce, among other things.

Parties to a premarital agreement may contract with respect to the rights and obligations of each of the parties in any property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; the disposition of property upon separation, marital dissolution, death, or the occurrence of nonoccurrence of any other event; the establishment, modification, waiver or elimination of spousal support; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement; and any other matter, including their personal rights and obligations, not in violation of either the public policy of Florida or a law imposing a criminal penalty. See Florida Statutes section 61.079(4)(a)(1-8). In contemplation of a premarital agreement being signed, there must be a fair and reasonable disclosure of the property or financial obligations of the other party.

Marriage has long been described as the union of two people, which in the end gives rise to solidarity of purpose and existence, creating one stronger unit.  With the emphasis put on the union, you can imagine that undoing the union is serious business.  During divorces, emotions run high for different reasons.  The financial aspect of ending the marriage relationship is high on the list of stressors.  For example, if a household brings in $100,000 per year between the husband and the wife, splitting that income in two and trying to maintain the same standard of living is hard to to do.  As a Jacksonville divorce lawyer, I’ve encountered this dilemma many times.  Intertwined in the issue of income splitting is the issue of dividing marital debt (and marital assets, but in this article the focus will be on marital debt).

Marital Debt

Marital Debt

According to Florida Statute 61.075, “All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as non-marital assets or liabilities are presumed to be marital assets and liabilities.”  In other words, both parties are responsible for debt created by one or both of them, unless it can be shown that one of them should be solely responsible for the debt.  This means proving that it is non-marital debt.  The person who wants the debt to be considered non-marital debt has the burden to prove that it is non-marital debt.

Here’s something that’s not news to anyone going through the process: divorce can be expensive. When a couple decides it’s time to part ways, it is almost always for emotional reasons but these issues can quickly morph into fights over money. The result can be financial devastation even in splits that started amicably. Everybody loses, except the attorneys.

The good news is that it doesn’t have to be this way. Divorce doesn’t have to destroy both parties financially but the decision rests in their hands.

Though it’s often hard to do, a divorce should be unemotional. There are years of hurt and anger built up, but the split needs to be seen as a business decision. Financial decisions should be made by keeping your emotions outside of the legal process, whether through therapy or exercise.

One of the most common questions that divorce attorneys hear is: “What will happen to our house?” While courts do have the power to order the sale of the marital residence, what happens to the house usually is left up to the parties themselves. Typically, the house situation has a lot to do with whether there are children residing in the home and whether one party can afford to buy out the interest of the other, either through cash or by offsetting the equity (or debt) with other assets.

As we mentioned, the first consideration is usually whether minor children are residing in the home. If there are children in the house and it has been their home for a significant period of time, the courts are often reluctant to order the property sold and the children uprooted. Usually, the Court will give the party residing in the house a chance to come up with a plan to make the mortgage payments and retain the property.

Judges prefer to have the parties themselves come up with a plan regarding the house than have to order the home sold. Even if the parties refuse to decide amongst themselves, a judge may still decide no to order a sale until the children are grown and gone. The court is also able to offset the equity in the house against the value of other assets (including retirement funds, stocks, bonds, etc.).

ed.jpgWhether 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.”

The short answer to this question is, unfortunately, yes. A mortgage contract cannot be negated by a divorce. 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 that the other spouse defaults 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.

st. augustine.jpgMany couples considering divorce are concerned that beginning divorce proceedings will mean that they have to put their lives on hold while their lawyers drag them through months of court battles, legal struggles and attorney fees. Not all divorces have to proceed this way. Many couples considering divorce are exploring the concept of uncontested divorce. Uncontested divorce is a fresh approach to divorce, one without the strain and discord normally associated with a traditional divorce.

In an uncontested divorce an attorney will draft a Marital Settlement Agreement, which identifies and addresses all issues between the divorcing parties including division of their mutual debts, properties, definitions of alimony, etc. Both parties consent to and sign the document which will be filed with the court. The Court adopts the agreement and enters it as part of the Court’s divorce decree of Dissolution of Marriage.

If you are considering a St. Augustine Divorce, it may be in your best interest to enlist the guidance of an attorney. An experienced St. Augustine Divorce Attorney can prepare and help you and your spouse carry out an uncontested divorce that is simple and affordable. If you think an uncontested divorce may be right for you, contact a St. Augustine Divorce Attorney today for a complimentary consultation to discuss your options.

A few weeks ago a report came out that Dmitry Rybolovlev, one of the 100 richest people in the world, had been accused of hiding close to $100 million dollars during his divorce. If you are in a situation involving such incredible wealth, you should seriously consider a prenuptial agreement, which a Jacksonville, Florida Family Law Attorney or a Jacksonville, Florida Asset Protection Attorney can help draw up for you.

However, even if you are not on the Forbe’s richest list, you obviously do not want your spouse to hide assets during your divorce. This can negatively affect division of other assets, which would not be good for you. Plus, this would be fraudulent to the court. But how do you know when your spouse is hiding assets? A recent Forbes article outlines some of the red flags. Many of the tips are somewhat obvious, but may be difficult to see unless you are looking at it from an outside prospective. Here are some tips and warnings to look for:

If your spouse maintains total control of your joint bank account information, make sure you keep track of the bank statements. Most banks have online services, so you should be able to monitor it from there. If your spouse denies you access to the password, but your name is nevertheless on the account, go to your bank and ask for a statement.

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