Articles Posted in Division Of Property And Assets

Published on: | by

Divorce proceedings in Florida often involve the division of businesses.  Courts typically effectuate the division of property and assets in a Florida divorce in such a manner as to allow the operating spouse to retain his or her ownership in the business.  Florida Courts will not require spouses to remain in business together when one or both spouses do not want to continue to do.  Courts will not award each spouse a one-half interest in a business and require them to continue to be business partners. 

In a Florida divorce, courts will obtain a proper valuation of the business and award the business to one of the spouses.  The court will then devise a plan of equitable distribution that is fair to both parties and that causes the least amount of interference with the business.  The court will award the business to one of the spouses and require that spouse to fairly compensate the other spouse.

In a case captioned Bowen v. Volz, the lower court divided a business owned by a husband and wife. The trial court awarded each party a fifty percent interest in their business. The Florida Court of Appeal reviewed this decision and began by commenting on the lack of evidence that was presented to the trial court concerning the value of the business. The Florida Court of Appeal then reversed the trial court.

Continue reading

Published on: | by

In Florida, courts begin with the premise that the distribution of marital assets and liabilities will be equal.  Courts look at all of the following 10 factors to determine whether an unequal division of marital assets is appropriate:

(i) whether one of the parties has made an extraordinary contribution to the marriage that is above and beyond the contribution that spouses ordinarily make to a marriage;

(ii) whether the economic circumstances of the parties warrant an unequal distribution of marital assets;

Continue reading

Published on: | by

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned Hamilton v. Hamilton.  In this case, the husband appealed the Final Judgment of Dissolution of Marriage based upon the fact that the trial court awarded an unequal division of the parties’ assets to the wife.  The husband contended that the trial court improperly classified over fifty thousand ($50,000.00) dollars of husband’s credit card debt as nonmarital debt.

The Florida Court of Appeal ruled that marital assets and marital liabilities are all assets acquired and all liabilities incurred during the course of a marriage.  These assets and liabilities may be acquired during the course of the marriage by either spouse, jointly, or individually.  There is a presumption in Florida law that all assets acquired and all liabilities incurred after the date of marriage which are not specifically designated as nonmarital assets and nonmarital liabilities are presumed to be marital assets and marital liabilities.

In the case at bar, the husband incurred charges on several credit cards that were used to pay for business expenses and personal living expenses during the course of the parties’ marriage.   The trial court concluded that the husband’s business expenses were nonmarital debt because the Husband failed to provide the trial court with evidence that any portion of the debt was marital.  The Florida Court of Appeal reversed the trial court’s ruling.  The Florida Court of Appeal ruled that the trial court’s designation of the husband’s business expenses as nonmarital liabilities failed to comply with Florida’s statutory presumption that all assets acquired and all liabilities incurred during the course of a marriage, which are not specifically established as nonmarital assets and nonmarital liabilities, are presumed to be marital.  Absent any evidence that the husband’s business expenses were specifically established as nonmarital liabilities, they are presumed to be marital liabilities.  Since there was no evidence in the record that showed that the husband’s business expenses were nonmarital, the Florida Court of Appeal ruled that they were marital liabilities.

Continue reading

Published on: | by

A division of property and assets case involving the exclusive use and occupancy of the marital home was recently decided by the Florida Court of Appeal.  In a case captioned Ortiz v. Ortiz, the husband and wife were married in 2010, and had three children. They lived in Tennessee for most of their marriage, and then moved to Florida.  The parties obtained a VA loan to purchase their home in Florida.  After the parties moved to Florida, the wife found employment and the husband started attending culinary school in Orlando, Florida.  When the husband’s culinary school in Orlando closed, the husband moved to Miami to attend culinary school.

The wife filed for divorce.  In the wife’s Petition for Dissolution of Marriage, the wife sought exclusive use and possession of the marital home.  The trial court awarded the Wife exclusive use and possession of the marital home until the parties’ youngest child reached the age of eighteen or the wife remarried.

The Florida Court of Appeal affirmed the ruling of the trial court.  The Florida Court of Appeal stated that the marital home, like any other asset, is subject to equitable distribution.  A trial court may deviate from the presumption that there should be an equal division of property and assets and may award one of the parties exclusive use and occupancy of the marital home under the following circumstances: (i) when it is desirable to retain the marital home as a place in which the parties’ dependent children should live, (ii) when it is in the children’s best interests, (iii) when it would be equitable to award one of the parties exclusive use and occupancy of the marital home, and (iv) when the parties are financially capable of maintaining the marital home.

Continue reading

Published on: | by

In a division of property and assets case captioned Roth v. Roth the parties were married for twenty-nine years.  The Former Husband was seventy-four, and the Former Wife was fifty-eight.  Both had high school educations, and both worked in the automotive industry.  The Former Husband was in a car accident and suffered injuries.  The parties filed a personal injury lawsuit and received a settlement award of $28,154.00.  On the day before the Former Wife left the marital home, she withdrew $13,000.00 from the settlement funds.

The Former Wife testified that she used the portion of the settlement funds that she withdrew to pay for her attorney’s fees and to pay for her living expenses.  The Husband testified that he used a portion of the settlement proceeds to pay for his living expenses and expenses related to the parties’ home.

The trial court included the settlement proceeds in its division of property and assets in this case.  The Former Wife argued that the trial court erred when it included these funds in the Court’s equitable distribution because the funds did not exist at the time of the trial.  The Florida Court of Appeal agreed with the Former Wife’s position, and stated that ordinarily it is a mistake for a trial court to include assets in an equitable distribution scheme that no longer exist.

Continue reading

Published on: | by

In a division of property and assets case captioned Roth v. Roth the Wife appealed the Final Judgment of divorce.  The parties were married for twenty-nine years.  At the time of the hearing, the Wife was fifty-eight and the Husband was seventy-four.  Both of the parties worked in the automotive industry.  The Husband was the primary income earner during the marriage.  The Wife was a stay-at-home parent after the parties’ son was born, and returned to the workforce when their son was in high school.

During the marriage, the Husband was in a car accident and suffered injuries.  The Husband and Wife filed suit and recovered $28,154.64.  The Wife withdrew approximately $13,000.00 of the settlement proceeds the day before she left the parties’ marital home. The Wife testified that she used these funds to pay for her attorney’s fees and her living expenses.   The Husband testified that he needed to use these funds to have an operation for an injury to his neck, because he could not afford it otherwise.

The Florida Court of Appeal ruled that in a personal injury case, a damage award is distributed in the following manner.  First, payments for pain and suffering, disability, loss of consortium, and loss of ability to lead a normal life are considered to be nonmarital property.  Payments for these loses belonged exclusively to the Husband.  Second, economic damages which will occur subsequent to the termination of the marriage, including lost future wages and future medical expenses are considered to be nonmarital and belong exclusively to the Husband.

Continue reading

Published on: | by

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.

Continue reading

Published on: | by

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.

Continue reading

Published on: | by

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.

Continue reading

Published on: | by

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.