Matthew Lane & Associates, P.A.

Division of Property and Assets Wellington, Florida

A motion for an interim division of property and assets must be sworn and should describe the assets to be partially distributed. The Court's Order should identify which assets are marital and which assets are nonmarital. In Austin v. Austin the Florida Court of Appeal recently stated: "Section 61.075(5), Florida Statutes (2011), does not authorize the trial court's action here, contrary to the wife's urging. This section provides in pertinent part as follows: 

'If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an order that shall identify and value the marital and nonmarital assets and liabilities made the subject of a sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities.' The wife's argument disregards the portion of the above-quoted statutory language requiring that the marital and nonmarital assets subject to an interim partial distribution be 'made the subject of a sworn motion.' (Emphasis added.) In this case, not only was the wife's motion not sworn, but it did not reference the husband's assets that were ultimately made the subject of liquidation and distribution by the interim order. Nor, again, did the trial court make any effort to identify which assets were marital and which were nonmarital. Where a party's private property is at stake, the simple fact, according to the trial court, that 'the parties were on notice that the nature of the emergency was the foreclosure of the home,' would not justify, as the court further observed, 'any and all actions taken at the hearing to eliminate that emergency...' Cf. Carmona v. Wal-Mart StoresE., LP, 81 So. 3d 461, 464 (Fla. 2d DCA 2011) ('To be sufficient, the notice must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must... convey the required information, and it must afford a reasonable time for those interested to make their appearance.' (quoting N.C. v. Anderson, 882 So. 2d 990,993 (Fla. 2004) (some internal quotation marks omitted)). In the instant case, the husband was wholly without notice that his State of Florida deferred compensation fund, his IRA, and his wine collection would be subject to liquidation in order to reinstate the mortgage. Consequently, it was an abuse of the trial court's discretion to order him to do so."

To speak with a Wellington divorce attorney, contact Matthew Lane & Associates, P.A. at (561) 651-7273

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