When it comes to divorce,
the division of material assets is one of the most difficult and emotionally
charged negotiations after child custody.
In Florida, the law
provides for what's called "equitable distribution" of marital
assets. Marital assets include things like cars, houses, business interests,
bank accounts, cash, personal property, stocks and bonds, retirement benefits
and other items of value.
But take note that
"equitable" and "equal" don't mean the same thing. In Florida, marital property will be
divided fairly, regardless of how title is held. There are several factors the court considers
before deciding how to equitably divide assets.
• The contribution of each spouse to the marriage
• The duration of the marriage
• The economic circumstances of each spouse
• Anything else that's relevant
Separate Property vs.
Certain types of property
aren't subject to division in divorce. If property is determined by the court to
solely belong to one spouse separately, it's separate property.For instance, if one spouse owned it before
marriage or acquired it as a gift during marriage (though this doesn't include
gifts from the other spouse) or by inheritance. So if your dad gives you a car for your birthday
while you're married, it's separate property. It's also separate property if:
• It's outlined in a valid written agreement, as
in a prenuptial agreement
• It's income from something that is also
separate property so long as the spouses haven't previously treated it like
marital property by "commingling" it
• It's something that you exchanged for or bought
with separate property
Marital property is
property that's considered to be owned by both spouses. In Florida, it doesn't matter if the property
is titled under one spouse's name, it's still considered marital property so
long as it doesn't fall under the separate property guidelines. So if you open a checking account while you’re
married and deposit money into that account, including your paycheck, that
doesn't fall under the separate property guidelines, that money is still
considered marital property.
Do You Need a Divorce
Generally, yes. A court will certainly accept a divorce
settlement that isn't overseen by attorneys if they believe that it's
equitable. But often, what was
originally an amicable divorce turns ugly once custody, alimony and division of
property are brought up.
consulting an attorney might help you have a better understanding of what truly
is equitable. Oftentimes, you think
you're getting a fair deal until you realize there are factors you hadn't
previously considered (at which point it might be too late).
There are also a slew of
little things that may affect your divorce that qualified divorce attorneys can
protect you from.For example, if your
spouse owns property that was technically considered separate property, but it
gained value because of funds that were marital property (for example, a joint
checking account or credit card), you may be entitled to some portion of the
separate property's value.
If you're the one who
owns separate property and used marital funds to pay for costs associated with
it, you also may be subject to having that considered marital property.
Additionally, some assets
are difficult to divide. If you own a
home, the court may determine its most equitable to require you to sell the
home and divide the profit, but they may decide it's more fair to allow one of
you to stay there for a specific period of time (especially if children are
involved) and then sell the home. But
exactly how they deal with it depends on your unique circumstances.
Bottom line: If you're in
the midst of a divorce, it's best to contact a qualified Orlando divorce
attorney before making any negotiations. At Draper Law Office, we'll give a totally
free, no-obligation consultation so you can be comfortable you're making the
right decision. Just give us a call at 866.767.4711.
Contact Us For A Free Consultation