Dividing Assets in a Florida Divorce
Asset classification and division are extremely complex.
Florida, like most other states, is an equitable distribution state. This rule has two components. First, all property in a divorce, including debts and assets, must be divided equitably. In family court, equitably is usually, but not always, the same as equally. Furthermore, the divorce cannot be an unfair financial burden on either spouse. Divorce is a financial burden. There’s no way around it. But the ex-spouses must share that burden equally.
Because this rule is so vague, most couples at least consider signing a premarital agreement, especially if one or both spouses have been married before. Prenuptial agreement rules are practically set in stone since Florida lawmakers recently approved the Uniform Marital and Premarital Agreements Act. Additionally, the agreement is uniformly enforced in all Florida counties and other UMPAA states.
In equitable distribution states like Florida, both spouses have important legal and financial rights. So, both spouses need a strong-willed Sarasota family law attorney who stands up for those legal rights. This representation is important because, in most cases, property division is a one-time affair. These divisions usually cannot be reconsidered or modified.
Classifying Assets
The UMPAA made prenuptial agreements easier to draft and enforce. But it didn’t affect the underlying marital/nonmarital property rule. Assets or debts acquired before the marriage or by gift are nonmarital property and everything else is marital property.
That principle sounds simple. But, as they say, the devil is in the details. The average marriage which ends in divorce lasts a little over seven years. During that time, assets and debts become commingled, and the line between marital and nonmarital property blurs.
Assume Raul bought a rental house before he married Maria. The rental house was vacant and in danger of being shut down due to multiple code violations. Maria, who owns a construction contracting company, brings the house up to code. As a result, Raul rented the house, and it remains perpetually occupied.
If Raul and Maria divorce, and if they do not have a premarital agreement that resolves the issue, the house might be Raul’s nonmarital property, Maria’s nonmarital property, or marital property subject to division. Likewise, all future rents might fall into any one of these three categories.
If Raul used a note to buy the house, the situation would be even more complex. Most likely, he would remain financially responsible for the note, no matter what. If a court awards the house to Maria or orders them to divide the house, a Sarasota family law attorney could argue that Maria is unjustly enriched (getting something for nothing), an argument that opens a new can of worms.
Speaking of dividing the asset, an immediate sale and equitable division may not be in the best financial interests of the parties. If the market is down, they may elect to hold onto it. If that happens, the decree must designate one spouse as the trustee. Once again, that designation opens a can of worms.
Dividing Assets
Once the classification quagmire is solved, the remainder of the process is often downhill. The property division must equitably divide assets according to a number of factors, such as:
- Length of the marriage,
- Nonmarital property awards,
- Future earning capacity of each spouse,
- Economic and noneconomic contributions to the marriage,
- Custody of minor children, and
- Agreements between the parties.
Marital property awards don’t occur in a vacuum. Frequently, a Sarasota family law attorney negotiates an offset. For example, Maria might agree to accept more spousal support if she allows Raul to keep a larger share of a 401(k).
Rely on a Diligent Sarasota County Family Law Attorney
Family law disputes usually involve emotional and financial matters. For a confidential consultation with an experienced family law attorney in Sarasota, contact Carman & Finegan, P.A. Convenient payment plans are available.