Helping Hands Document and Mediation Services

IT IS STRONGLY RECOMMENDED THAT YOU CONSULT WITH A LICENSED ATTORNEY IN YOUR AREA  IF YOU DO NOT UNDERSTAND WHAT YOUR RIGHTS ARE. This information is not intended to sub-statue for legal advice they are examples of issues that we will address in Mediation all final out comes will be up to the parties . 

WE ARE NOT ATTORNEYS AND CAN NOT GIVE LEGAL ADVICE. 

Equitable distribution of property in Florida; decided what is yours, mine or ours and how it can be divided up. Florida statistics shows that property division requests the most Court hearing time. If however you and your spouse can agree on a split of property ahead of time which is called a Mediation agreement or a stipulated settlement or sometimes just a settlement agreement and your agreement is reasonable, the court can approve your agreement as written and incorporate it into the Final Dissolution of Marriage. This can be a real financial and emotional cost favor to you. Otherwise the Court will set the matter for hearing, hold a trial and impose its own decision on how to divide your property.

So what are the general principals of property division that the court's in Florida follow?

ASSETS AND LIABILITIES

Property includes everything that you have that could be considered an asset such as your home, cars, timeshares, investment property, investment accounts, retirements assets, stocks, pets, bank accounts, equipment, your business, life insurance cash value, pension plans, accounts receivable, furniture, jewelry, etc.

The other item that must be considered are your liabilities.

Home and what do you owe?

This must come into the mix. Often the parties fail to insure that the person to whom the debt was assigned in the marital settlement agreement or the divorce decree properly pays the debt.

Remember: a creditor is not bound by the agreement between you and your ex or by the court order.

If it is a joint liability, it will look to you that the debt is not paid regardless of any agreement or Court order. After you have listed all your assets and liabilities, the Courts will look at whether the property is marital or non-marital property. Marital property is subject to be divided by the Court or by the parties in the marital settlement agreement. Non-marital property is not divided at all.

Non-Marital Assets and Liabilities include:

• Those acquired or incurred by either spouse prior to the marriage
• As it is acquired by either spouse by non interspousal gifts or inheritance
• Income derived from non-marital assets during the marriage; unless the income was used or relied upon by the parties as a marital asset, for example if they deposited it into a marital account
• Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties such as a pre-nuptial agreement

Marital Assets and Liabilities include:

• Those acquired or incurred either or both of the spouses during the marriage
• Enhancement of or act of appreciation in, value of a non-marital asset as a result of the efforts of either spouse during the marriage or from the contribution to an expenditure of marital funds or other marital assets
• Inter-spousal gifts during the marriage
• All vested and non-vested benefits or funds occurred during the marriage in retirement, pension, profit sharing, annuity, deferred compensation, and or insurance plans or programs
• Property held by the parties in tenancy by the entirety, or otherwise commingled, or acquired during or prior to the marriage, is presumed a marital asset, although one spouse may claim contrary and prove special equity. (however if a prenuptial contract holds otherwise this is not the case)

PROPERTY DIVISION

Property division example:

Adam and Eve have been married for ten (10) years. (Ten years is a grey area when it comes to alimony). Adam is employed as a bagger for Publix. They have a joint banking account with a ten thousand dollar ($10,000.00) balance and a credit union account that John started four (4) years prior to the marriage which is now held in their joint names. Every month Adam places $50.00 in the credit union savings account from his wages. Eve has never deposited any funds into that account. Eve's mother died five (5) years ago and left her twenty-five thousand dollars ($25,000.00); she used five thousand dollars ($5,000.00) to start a new business which has been successful. Before starting her business she had been a homemaker. Now she is a nail tech. A California nail chain has offered to purchase her nail business for $100,000.00. With the remainder of her money from her mother's inheritance Eve bought Adam a new car to replace the old one that he had before they got married. Adam has a pension from Publix where he has worked for the past fifteen (15) years. Adam plans to retire when he reaches thirty-five years (35) with the company. Adam and Eve have a joint credit card which has a balance of three hundred dollars ($300.00). Eve also has a credit card in her name which she used for household purposes which has a balance of five hundred dollars ($500.00).

In figuring out what property is marital and what property is non-marital it helps to determine when and where the assets arose.

The joint checking account arose during the marriage. It is presumed to be marital even if consists of commingled funds from non-marital property where the funds have been used for joint expenses. However, non-commingled funds even if jointly titled may be traced to establish that they are non-marital. The party trying to establish that there are non-marital funds would need to prove that a gift of the funds was not intended by the act of jointly-titling the account.

What about proceeds from the sale of a marital home?

Whether a spouse is entitled to a credit or a set-off against the proceeds is based on a set of factors such as: (1) whether the exclusive use of possession of the marital home is awarded, and the basis such award; (2) whether alimony or child support is awarded to the spouse who is in possession of the home, and whether such alimony or child support is awarded to cover the mortgage, taxes or other home related expenses; (3) the value of the use and occupancy of the home to the spouse in possession and to the spouse not in possession. The Court will look to which party will be able to claim any home related tax deductions, including any capital gains, events and any other relevant factors that making its calculations to the right to a credit or set off against the marital portion.

You must remember that everyone's situation is unique and that every property distribution of assets and liabilities in a divorce is not the same, however, they all have all have some degree of consistency by using the rules above.

Who gets what? What property division is the in the best interest for both of the parties? We have predicted how the Court will value your marital estate now what should you do about it?

Should your spouse take the car and the retirement funds while you keep the house? Or should you split it all down the middle to achieve an equitable distribution?

Unfortunately most marital property owned cannot be split straight down the middle due to the nature of the assets? Assets even those that may have the same value do not have the same emotional value or the same tax ramification and/of appreciated rates. They can be inherently unequal, although the same monetary value. If left  to a Court, the marital estate may be divided in ways that are not best for the parties, either financial or emotionally. If your marital assets are not significant you may not  have a difficult time dividing and divvying up your marital estate with your ex-spouse to be. However, if you have a pension plan, a retirement account or a home you could be talking about a larger financial numbers than you may realize.

YOU MIGHT CONSIDER:

If you have allot of assets and liabilities . A certified divorce financial analyst (CDFA) may be worth the investment. Most attorneys or mediators  do not do the tax ramifications involved in the equitable distributions plans and they leave that to an expert. Also having a Certified  appraiser  come and appraise your home or business or have an actuary done on your Pension to determine what it is actually worth may be worth investing in .  Also  to go over Tax Consequences you may contact a CPA  to go over your options. We always advise that you seek  legal or professional advise from the experts as an informed person makes better decisions . Please be advised that as a Mediator we do not give legal or Tax advice.  

Still have questions? Please contact us anytime! We look forward to hearing from you.