Jacksonville Divorce Lawyer Blog

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, the parties often have a marital home that has to be divided by the parties regarding either the asset value or the debt owed. However, sometimes the house may simply shift ownership per a divorce agreement by the parties, especially when the home is underwater like most are in today’s economy. The shift normally occurs because the party that stayed in the home at the time of separation cannot afford to maintain the home after the divorce is final, but the other party can. As a Jacksonville divorce lawyer, I often receive questions from clients regarding what the home must be in at the time of transfer.

If possible, you want the divorce agreement or order to actually define the condition of the home and what necessary repairs must be done. It does not make sense that the party is returning the home in a better condition than how it was during the marriage, but it also should not be in worse condition. If the party with present possession does not have the ability to maintain the home, then it is unreasonable to expect the spouse to have the ability to fix in and all issues that were present during the marriage. Things such as lawn maintenance that was in place during the marriage should also be kept up. However, completely re-landscaping the yard to make it better looking is not a reasonable cost expectation.

The issues that typically arise in cases are where a spouse is upset about having to move out and then actually depletes the marital value of the home by destroying the property. Destruction of property is not reasonable wear and tear, but actually done to impact the value of the home and the ability for the other spouse to live in it. These actions can actually be brought up to a judge in a contempt and enforcement situation. The offending party may be responsible for all necessary repairs of the damage done and responsible for the attorney’s fees for the other party. Destruction of the home is more common than most people would like and is something seen not only in divorces, but in foreclosure cases as well. Understanding that the damage may come back as a cost to you can be a deterrent.

Also, in a divorce proceeding and contempt of the order, the judge can go so far as requiring the offending party to go to jail and give a purge amount of the cost for all repairs. The reason is that a violation of a court order is actually a legal violation that is punishable with time in jail. In a destruction of property action, the contempt may not be the only legal violation, but criminally, there may be action that the police can take for vandalism and intentional destruction of property, if the spouse is caught.

If you have a home that has been or will be divided in a Florida divorce, then you should speak with an attorney about your rights and options. If your home was to be transferred and the other party failed to do something or is trying to impose additional responsibilities, then you may need to file the proper action with the court.

Written by: Lenorae Atter, Attorney at Law

A Florida divorce in today’s economy can be tricky given the financial circumstances in which many people find themselves. Though there is economic recovery, the fact remains that many people are still underwater when it comes to their homes or properties and Jacksonville, Florida is no different. In a Florida divorce, the assets and the debts accumulated during the marriage are equitably divided in accordance with Florida Statute 61.075. An equitable distribution of property and debt can often be unequal if there is a disparity in the incomes or there is more than one significant debt held by the parties, then dividing the responsibility for each can be challenging.

In Florida, most often the home is often ordered to be sold unless the parties have a minor child. Given the marketplace and the realities facing many people who are upside down on their home, equitably dividing house debt can be a challenge. The concern for many is that even if the house were to be placed on the market, there is no way to recover the actual amount owed, so a short sale would have to be approved. Therefore, the parties are on the hook for whatever portion is remaining as a set-off. Also, the concern is that if one party is to take the home, then there is a strong likelihood that at some point, that party will be living rent free in the home until kicked out by foreclosure, thus strapping the other party with an unnecessary debt.

Recently, a Florida couple was divorcing and the wife wanted to keep the marital home because she did not want it to be foreclosed upon or sold as a short sale given her credit. The trial judge awarded her the home, but did not divide the debt owed on the home since there was a strong likelihood, in today’s economy, that she would end up living there rent free until kicked out by a foreclosure process. The trial court even noted the reality that many people are just turning in their keys and walking away from the home, thus not thinking it pertinent to divide the debt between the parties equitably.

The 3rd District Court of Appeals in Florida felt differently and found that the legal basis provided by the trial court for not dividing the debt was insufficient. The appellate court ruled that the legal rational by the trial court was not enough to actually defeat the Florida law requirement for equitable distribution. In its opinion, the court found that even if the parties were to walk away from the property, they could be strapped with a deficiency judgment, which would allow the bank to collect against one or both of them. Therefore, the court ordered that the foreseeable debt regarding the home did need to be equitably distributed to the parties.

In a divorce the marital home is often sold and the parties equally take responsibility for any debt owed or they equally take the net profit. The party that takes care of the payments while the house is on the market, or kept, is often given a credit for the payments made since the divorce. With the realities of foreclosure in Florida, the fact remains that there may be no debt to inevitably divide, but the court should at least provide a provision for how the debt will be paid if there ever is a deficiency.

Gambling debts, martial affairs, excessive drug use and the like can lead to a divorce in Florida. However, Florida is a no-fault state so these things do not really come into play when determining such things as alimony. As a Jacksonville divorce lawyer, I am often able to get these acts of impropriety and waste into the case because Florida law does allow for these actions of using martial funds for the benefit of one spouse to play a role in dividing assets and liabilities. Florida Statute Sec. 61.075 (1)(I) provides that one of the factors for unequal distribution is: “The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” Therefore, the use of marital funds to further such things as an affair, within two years of filing for divorce, can be used to unequally distribute assets and debts to the parties.

When the court hears a divorce case and the court makes a decision regarding division of assets, then the losing party may believe that there are grounds for an appeal. In that case, the appealing party provides a brief to the appellate court establishing the legal basis and argument for why the first court’s order should be overturned. In a recent Florida case, Zambuto v. Zambuto, 36 FLW D2758 (Fla. 2nd DCA December 16, 2011), the Husband filed an appeal after the Wife was awarded an unequal distribution of marital debts and assets to her favor. In this case, the Husband had gambling debts/losses of $90,000.00 that were established two years before the filing for divorce. In the first court, the debts for gambling were charged solely to the Husband and the Husband appealed. The appellate court heard the case and ultimately decided to overturn the first trial court’s decision regarding said debts due to the lack of specific findings that the gambling only benefited the Husband and that the gambling occurred during the “undergoing of irreconcilable differences,” meaning the parties were not getting along and heading towards divorce.

While the appellate court seems to put this new twist on the statute, there is question as to whether the appellate court intended to require that in all circumstances, the debt for the benefit of one party is accumulated during the “undergoing of irreconcilable differences.” In this case, there was a history of the Husband making more money than the Wife and using gambling as a way to entertain business clients, and sometimes the Wife joined in the gambling. Therefore, the thought may be that the court intended this second portion for purposes of activities that historically benefited both parties, not just one, and that the use of the martial funds was done at a time when the Husband already stopped the benefit to the Wife by reducing the money in their joint accounts, moving out, etc. However, the case does not specifically state this and therefore leads to the question of whether funds depleted two years before filing must only be considered if the funds were depleted during the, “undergoing of irreconcilable differences.”

Housing issues are a problem in most Florida divorces right now because a number of homes are upside down or underwater and in Florida, properties, assets and debts are to be divided equally. The courts struggle with this situation because even if the home is underwater it must still be factored into the equal distribution process. In addition, courts are aware that many people are now walking away from their homes and surrendering them into the foreclosure world. However, as a Jacksonville divorce lawyer, I prepare my clients for the house payments and associated insurance and related expenses because it is a factor in determining the outcome of the divorce and what debts may client may assume. Many people, even today, are hesitant to walk away from a house due to the impact it will have on credit and future purchases while trying to rebuild after a divorce.

Recently, a Florida appellate court evaluated this situation in Byrne v. Byrne, 3D10-2323 (Fla. 3rd DCA January 18, 2012). In the case, the parties had a condo that was $76,000 underwater. Originally, the Wife wanted to keep the home and make payments towards the property so as not to ruin her credit. She was initially awarded the home in the divorce, but was given no consideration by the court regarding the negative equity that she was taking ($76,000 would be owed upon sale). The trial court, in its initial decision, noted that there was a presumption that the Wife would actually turn the keys over the bank in foreclosure and would subsequently not lose the $76,000.

An appeals court is where one takes his/her case if the outcome of the initial case is factually or legally incorrect based on the evidence that is presented at court. Often, a transcript of the original trial will be necessary to preserve the evidence for the appeals court because the court transcript provides a formally written account of all statements made in the courtroom. Typically, a transcript is typed by a court reporter and since all witnesses are sworn in, their statements in court are sworn to statements that can be typed up and presented to the appeals court for review of all evidence.

In this case, the third district court of appeals in Florida considered the order entered by the trial court in the divorce and ultimately found that while the court was rational in its thought that many people are walking away from their homes. However, the appellate court also determined that there still must be consideration for the debt in the equal distribution of assets and debts because the bank may still come after the Wife for a deficiency (Husband too if the mortgage still has his name on it.).

The reality is that the judges are limited in their knowledge of the case because they only get to hear what is presented at court. While the parties may negotiate outside of the court and go to mediation, those negotiations are confidential and cannot be used at trial. Therefore, the judge may hear that a party, like the Wife, wants to keep the home, while in negotiations the Wife tried to give the debt of the home to the Husband because she did not want to have to deal with the mortgage, repairs and the like on a money pit. Ultimately, the courts have a duty to err on the side of the law and in Florida the law is for equal distribution of assets and debts regardless of what the party will actually do with the debts after the divorce (e.g. bankruptcy of all credit cards).

Written By: Lenorae Atter, Attorney

When going through a divorce in Florida, it is often difficult to think about separating the things that have been accumulated during the marriage. As a Jacksonville divorce lawyer, I am often asked how items such as the house, cars, debts, retirements and alike will be divided. Also, divorce attorneys are challenged with the ever-popular issue of the smaller, more emotionally meaningful items like furnishings, gifts, awards, collectibles, etc. The division of assets and debts is not always easy, but Florida Statute 61.075 provides that the division should be equitable, meaning that each party has equal division of all assets and liabilities (e.g. debts). It is best to speak with a divorce or family law attorney to find out your rights and options when going through a divorce in Florida.

Equitable distribution in Florida is designed to make it where the parties are able to fairly take from the marriage since they collected the items together over the course of marriage. The Statute provides specifics for the division of nonmarital assets/debts (e.g. those purchased or accumulated prior to the date of the marriage) and marital assets/debts (e.g. collected during the marriage). The court should first establish what is nonmarital and separate those items from the marital property. The parties can do this individually before going to court and can reach an agreement on what is actually marital property before entering the court for a final hearing or trial. When going through a divorce, it is a good idea to make a list of all of your property and make a list of what is marital and what is nonmarital, share that list with your attorney and your attorney can then share that with your spouse’s lawyer.

Once a list of marital items has been developed, the Court is responsible for dividing the marital property equally. The equal distribution of marital assets is based on value of the property. Since the debts are also equally distributed, there are often give-and-take of assets value versus the debts in order to reach an equal resolution, especially since debts will be based on ability to pay as well as equal distribution. Given that parties often have a disparity in their incomes, and other circumstances may arise to give the Court reason to unequally distribute property, the Court may consider the following factors when distributing marital property and debts in accordance with Florida Statute 61.075(1):

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, free from any claim or interference by the other party.

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