Articles Posted in Division Of Property And Assets

A division of property and assets case captioned Ritacco v. Ritacco was recently decided by the Florida Court of Appeal.  This case involved a twenty-two year marriage. During the course of the marriage, the parties had two children.  Both are now adults.  The Husband drew a salary, received a pension, and owned a DROP account.  The Wife moved out of the marital home on the day that she filed her Petition for Dissolution of Marriage.

The Wife also borrowed $65,761.00 from the parties’ HELOC on that date.  The Wife deposited these funds into her bank account.  She testified at the final hearing that she used these funds to support her daughter and herself.  She stated that she used these funds to purchase gas, clothing, food, and to pay for medical visits for her daughter.  At the hearing, the Husband asserted that the Wife’s withdrawal from the HELOC was a non-marital debt.

The Florida Court of Appeal stated that under Florida statutes, there are three dates that a Court may utilize to classify marital assets and liabilities.  The first date is the date on which the parties executed a valid separation agreement.  The second date is a date agreed to by the parties in a valid separation agreement.  In the event that neither of these dates apply, the date that Florida Courts utilize to classify marital assets and liabilities is the date that a Petition for Dissolution of Marriage is filed.

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned Ortiz v. Ortiz. In this case, the Florida Court of Appeal pointed out that in making a division of property and assets, a trial court is required to begin with the assumption that there will be an equal division of marital assets and liabilities, unless there is a reason for an unequal division based upon the following factors: (a) each spouse’s contribution to their marriage; (b) the parties’ economic circumstances; (c) the length of the marriage; (d) whether there was an interruption of either party’s careers or educational opportunities; (e) whether one spouse contributed to the other spouse’s career or educational opportunities; (f) the desirability of one party retaining particular assets, such as corporations, businesses, and professional practices; (g) each spouse’s contribution to the production of income, the improvement of assets, or the accumulation of debt; (h) the need to retain the marital home as a place in which the children or the other spouse can to live (based upon a determination by the Court that it is fair to do so, is in children’s best interest, and is fiscally feasible; or based upon a finding that it would be fair to provide the other spouse with exclusive use and possession of the home); (i) the intentional dissipation or destruction of marital assets; and (j) any other factor that is necessary to bring about a just result.

In the case at bar, the trial court failed to make the foregoing factual findings, and therefore the Florida Court of Appeal reversed the decision of the trial court and remanded the case back to the lower court with instructions to make these findings.

To learn how courts divide property and assets in Florida, contact a divorce attorney at Matthew Lane & Associates, P.A. at (561) 363-3400.

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned O’Neill v. O’Neill. In this case, the Husband appealed the equitable distribution award issued by the trial court. The lower court improperly included in the division of property and assets an automobile that was no longer in the Wife’s possession, failed to consider the loan balance in valuing the Husband’s car, and failed to properly value the parties’ investment accounts.

First, the Florida Court of Appeal ruled that it was improper to include in the equitable distribution award a vehicle that the Wife no longer possessed. Accordingly, the Court reversed and remanded the case back to the trial court to recalculate its equitable distribution award.

Second, the trial court improperly valued the Husband’s BMW. At trial, the Husband testified that his automobile had a negative equity of $6,000. The Florida Court of Appeal ruled that the lower court should have included the outstanding debt on the vehicle in calculating its value. Therefore, the appellate court reversed the trial court on this matter.

Appropriate division of property and assets in Florida divorce proceedings was recently explained by the Florida Court of Appeal in a case captioned Jackson v. Blazer. In reaching its decision in this division of property and assets matter, the Court turned to the statutory definitions of marital and nonmarital property in the State of Florida. In Florida, marital property includes: (i) assets obtained and liabilities incurred during the course of the marriage; (ii) the increase in the value of nonmarital assets that result from either party’s efforts during the course of the marriage or from the use of marital funds; (iii) the reduction in the principal of any mortgages secured by real property that are nonmarital, and part of any passive appreciation in properties if the mortgages are reduced with marital funds; (iv) gifts that the parties give to each other during the marriage; (v) retirement benefits, annuities, insurance, deferred compensation, and pension and profit-sharing rights obtained during the course of the marriage; and (iv) property held by the husband and wife as tenants by the entireties is presumed to be a marital. This presumption is rebuttable.

Nonmarital property includes: (i) assets obtained and liabilities that are incurred prior to the marriage, and liabilities incurred and assets acquired in exchange for such assets and liabilities; (ii) assets obtained by noninterspousal gift and assets obtained in exchange for these assets; (iii) income derived from assets that are nonmarital, unless the income is used by the parties as a marital asset; (iv) assets and liabilities excluded by prenuptial or postnuptial agreement; and (v) liabilities incurred by unauthorized signature or forgery of a spouse’s signature.

In this case, the former husband purchased one of his cars before the marriage and one of his cars after the filing of the divorce. The former wife purchased her car and took out a loan on her car after the divorce was filed.  The Florida appellate court ruled that because the former husband purchased one of his cars prior to the marriage and one of his cars subsequent to the date on which the Petition for Dissolution of Marriage was filed, these assets were nonmarital. Additionally, because the former wife purchased her car and took out the loan on her car after the date of the filing of the Petition for Dissolution of Marriage, the Wife’s car was a nonmarital asset, and the loan on the Wife’s car was a nonmarital liability.

A division of property and assets case involving a husband’s pension was recently decided by the Florida Court of Appeal. In this case, the husband and wife were married for thirteen years. When the divorce was filed, the husband had been working for the City of Delray Beach as a firefighter for 16 years. The Husband’s pension accrued at a rate of 2.5% per year. Once the husband had served for 25 years, his retirement benefits increased to 3% per year. When the divorce was filed, the husband was eligible for the 2.5% multiplier. The Florida Court of Appeal pointed out that there are two methods to distribute pensions. The first method is the immediate offset method. Under this method, spouses receive the present value of their interest in the other spouse’s pension either in cash or as a share of marital distribution. The second method is the deferred distribution method. Under this method, the judge determines the amount of the employee’s benefit as of the date of the final hearing (without any early retirement penalty).

In the division of property and assets case,the court then multiplies this amount by the percentage that the spouse is entitled to receive. The recipient spouse then receives this amount from each of the spouse’s retirement payments. The benefits are not to include the value of services performed after the date of the final judgment of dissolution. These methods of distribution enables both parties to share in the benefits accrued during the course of the marriage. In this case the Florida Court of Appeal found that the 2.5% multiplier was the most appropriate multiplier because the 3% multiplier was a bonus for the additional work that the husband must perform after the date of the final judgment in order to qualify for the larger retirement multiplier.

To speak with a division of property and assets attorney in Palm Beach Gardens, Florida, about the division of your pension in a divorce case, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

The division of property and assets in a divorce proceeding cannot include property that was previously conveyed to the parties’ children. In a recently decided case captioned Perez v. Perez, the parties were married for twenty-three years. The husband and wife owned several pieces of real estate. During the course of the marriage, they conveyed four pieces of real estate to their sons. As part of the final judgment in the divorce proceeding, the trial court awarded some of the real estate that was conveyed to the children to the husband and some of this real estate to the wife.

During the course of this divorce proceeding, the wife sued her sons as third party defendants claiming that her husband and sons had engaged in a scheme to defraud her. The husband contended that the wife agreed to the transfer at the time that it was made. In point of fact, the wife signed the deeds conveying the property to her sons. In making its equitable distribution award, the trial court included the properties that the parties had conveyed to the children.

The Florida Court of Appeal reversed the trial court’s ruling on the division of property and assets. The appellate court stated that the lower court improperly awarded property to the husband and wife that they had previously conveyed to their children. The Florida statutes create a clear rule as to when property is deemed to be marital and nonmarital. Absent a separation agreement, the date to determine when an asset is marital or nonmarital is the date of the filing of the divorce. The lower court should have looked at what the parties owned when the divorce was filed. An asset that was previously conveyed to another person cannot be awarded to a spouse as part of an equitable distribution award in a divorce proceeding. The property deeded to the children was a nonmarital asset and should not have been part of the equitable distribution in this matter. Accordingly, the Court of Appeal held that the trial court’s distribution of the son’s property was improper and reversed the ruling.

A division of property and assets case involving the valuation of a start-up company was recently decided by the Florida Court of Appeal. In a case captioned Soria v. Soria, the husband and wife were married in 1988. The parties were married in April 1988. The husband was the founder of a start-up limited liability company. At the time of trial, the company was carrying approximately $400,000 of debt. The company’s liabilities varied from $9000 to $76,000 and the company’s assets varied from $147,000 to $190,000. The husband testified that he was essential to the operation of the business and that the business could not operate without him. The husband owned approximately 64% of the business and investors owned the remaining 36% of the business. After the divorce was filed, the husband transferred 30,000 of his shares in the company to his girlfriend in order to compensate her for her work for the company.

The par value of the company stock was a dollar per share. The trial court used the par value of the company’s stock to value the company. The Florida Court of Appeal reversed the trial court. The Florida Court of Appeal held that in making a division of property and assets determination involving companies, the value of a business is determined by assessing its fair market value. The fair market value of a business is the amount that a willing buyer would pay a willing seller would accept if both parties had knowledge of the value of the business and neither party was under duress. The value of a business is the value of the company’s assets plus the value of its goodwill. Enterprise goodwill is the value of a business that exceeds its assets. It constitutes the tendency of patrons to return to a business irrespective of the presence of its owner. Professional goodwill of a doctor, lawyer or business owner is distinct from enterprise goodwill. It is based on the skill and continued participation of the owner in a business. Although, enterprise goodwill is considered to be a marital asset in divorce proceedings, a doctor, lawyer or business owner’s personal or professional goodwill is not considered to be a marital asset.

To speak with a divorce attorney in Boca Raton, Florida about business related issues , contact Matthew Lane & Associates, P.A. at (561) 363-3400.

A Division of Property and Assets case was recently decided by the Florida court of Appeal. In a case captioned Ramos v. Ramos, the Court ruled that, under Florida law, the appreciation in the value of a nonmarital asset that results from the expenditure of marital funds or from marital labor is a marital asset. For example, if a $500,000 home is owned by one of the parties prior to the marriage and the value of that home is increased to $1,000,000 as a result of marital efforts, the increase in the value of the home is considered to be a marital asset subject to division by the Court.

In the Ramos case, the parties married in 2000, and the Husband filed for divorce in 2014. The Husband maintained that his vending machine business was a nonmarital asset because the business was started ten years prior to the date of the marriage. The Husband contended that because the business was a nonmarital asset, it was not subject to equitable distribution by the Court. The Wife contended that the business was a marital asset. The evidence at trial showed that the Husband’s business lost value during the course of the marriage. The trial court agreed with the Wife and found that the business was a marital asset. The Husband appealed the trial court’s ruling. The Florida Court of Appeal agreed with the Husband and reversed the trial court.

Regarding the Division of Property and Assets, the Florida Court of Appeal ruled that the business was a nonmarital asset. Since it was a nonmarital asset, only the enhanced value of the business during the marriage was subject to equitable distribution by the Court. The enhanced value of a premarital asset that results from efforts by either party during the course of the marriage is marital property. Since the Husband proved that the business was formed ten years prior to the date of the marriage, the burden of proof shifted to the Wife to prove that the business became partially marital through the efforts of the Husband during the course of the marriage. Since the value of the business actually went down during the course of the marriage, the Wife was unable to meet this burden of proof. Accordingly, the business was found to be a nonmarital asset that was not subject to equitable distribution.

The Division of Property and Assets statute in Florida classifies property as marital assets and nonmarital assets. A divorce court divides marital assets between the parties. However, nonmarital assets are retained by their owner. When a nonmarital asset is enhanced in value by marital labor or by marital money, the enhancement in value itself becomes a marital asset. In a recently decided case captioned Higgins v. Musso, the wife received a home as part of her divorce from her first husband. She borrowed money from her parents to buy out her first husband’s interest in the property. The wife’s mother filed a lien on the property which proved that the wife borrowed money to purchase and renovate the home. The wife also utilized marital funds to fix the property after it was damaged by two hurricanes. The wife painted the ceiling, installed new carpet, and put in a new roof. Insurance proceeds paid for some of the repairs. The parties took out a line of credit to build the marital home and took out a loan to repay the line of credit. The home sold for over a million dollars. The sale proceeds were deposited into a bank account. The trial court ruled that the entire proceeds from the sale of the home were marital assets.

The Florida Court of Appeal reversed the trial court and ruled that the expenditure of marital funds to improve a nonmarital asset does make the entire asset a marital asset. Only the increase in the value of the asset is considered to be a marital asset. The party that asserts that they are entitled to receive the benefit of the increase in value of the home has the burden to prove that an enhancement to the value of the home occurred. Once that party proves that marital funds or marital labor were used to enhance the value of the property, the other party has the burden to show that a portion of the increased value should not be included in the division of property and assets. The trial court must determine the amount of the enhancement and must determine which part of the enhancement was attributable to marital money or marital labor. The court should look at the value of the property prior to the enhancements and the value of the property after the enhancements were made. The court should then determine the amount of the appreciation that is attributable to marital labor or and the amount of the appreciation that is attributable to marital money.

To speak with a division of property and assets attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 363-3400.

In a recent division of property and assets case, captioned Gotro v. Gotro the Florida Court of Appeal held that a trial court should not include expended assets in an equitable distribution scheme unless these assets were dissipated as a result of one of the parties’ misconduct. In this case, the parties had a 39 year marriage and had 4 adult children. The husband was the primary breadwinner. The husband had a number of bank accounts which were marital assets. The significant bank accounts, for purposes of this appeal, were two accounts at BBVA Compass Bank. By the time that the final hearing took place, the balances in these two bank accounts was significantly lower than they had been at the time of the filing of the divorce. The husband testified that he had used the money in these accounts for his living expenses. The husband requested that the trial court distribute these accounts based upon their value at the time of the final hearing and not as of the date of the filing of the dissolution of marriage. In fashioning its final judgment, the trial court used the values in the accounts as of the date of the filing of the divorce.

In fashioning a division of property and assets the trial court can utilize any date of valuation that the court decides is equitable and just. Different assets can be valued as of different dates. However, it is usually inappropriate to include assets that no longer exist in a division of property scheme. The exception to this rule is when one of the parties’ misconduct results in dissipation of the parties assets during the pendency of the proceedings. A parties’ misconduct may become the basis for assigning an expended asset to that spouse. If the trial court decides to do this, in its ruling, the court must make specific findings that spouse engaged in intentional misconduct. The court must find that the parties’ expended asset was used for a purpose unrelated to the marriage during a time when the parties’ marriage was undergoing a breakdown.

If your spouse has used marital assets to support a girlfriend or a boyfriend, contact Florida divorce attorney Matthew Lane, Esq. at Matthew Lane & Associates, P.A. at (561) 363-3400.