Property Distribution

July 11, 2012

In a Florida Divorce Will My Business Be Given to My Spouse?

Written by: Lenorae Atter, Attorney at Law

In a Florida divorce, regardless of fault, the marital property, debts and assets are to be divided equally. Florida divorce requires that marital items be equitably distributed through the court if the parties cannot otherwise agree on the division of assets, debts, and the like, with few exceptions. The one thing that often can be left out when couples try to divorce on their own is the division of a business. Yes, in Florida, if you start and own a business during the marriage, then that is a marital asset (sometimes a liability) that should be divided by the parties. However, it also means that there is another party to your divorce, the actual business itself, because the business has an overall interest in the outcome of the case.

For example Wanda and Hank have decided to divorce after twenty (20) years of marriage. About five (5) years into the marriage, Wanda started her own bakery, Wanda’s Treats, and it has been successful since it opened. Wanda is now more of a managing owner, than acting as lead baker so the business is self-running at this point in their marriage. Hank files for divorce and in his petition, requests that the business be equitably divided between him and Wanda. Normally, in filing for a divorce, the case will only list the parties as Hank and Wanda. However, since Hank wants part of the business, the business itself actually has a stake in the divorce and should actually be named as an additional party to the suit. When that occurs, Hank not only needs to serve Wanda with divorce papers, but also serve Wanda’s Treats’ registered agent, separately. Mathis v. Mathis, 2D11-298 (Fla. 2nd DCA June 15, 2012). By doing so, the business can actually have its own attorney as well to make certain that the business valuation is fair to the business and that any division is done to preserve the integrity of “Wanda’s Treats.”

April 18, 2012

After My Florida Divorce, Am I Required to Make All Repairs to a Home?

By Wood, Atter & Wolf, P.A.

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.

March 21, 2012

Going Through a Florida Divorce with a House Under Water

By Wood, Atter & Wolf, P.A.

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.

February 2, 2012

Dividing Marital Assets and Debts in a Florida Divorce After Using Marital Funds for Gambling, Affairs or Drugs

By Wood, Atter & Wolf, P.A.

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.”

December 16, 2011

In a Florida Divorce, How Do I Divide or Split My Property?

By Wood, Atter & Wolf, P.A.

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.