The steps a Florida court should take to divide property in a divorce where the spouses can't come to an out-of-court agreement are laid out by Fla. Stat. §61.075. First, the dates when marital property started and stopped accruing must be determined. This isn't always as clear as the wedding date and the day the divorce petition was filed. For example, the spouses could have lived together, bought a home together before marriage, and made payments before the wedding. Unless you have a rare cut-and-dry case, The Joseph Firm recommends that you review your specific situation (i.e. set of facts and details) with a Florida divorce lawyer. An experienced divorce attorney can help you with the equitable distribution process and clarify how Florida law affects property acquired before or during your marriage.
Not all divorce matters are created equal. Depending on the unique facts of your case, there may be nuances that differ. However, typically there are general issues that must be addressed in all divorce matters when it comes to the equitable distribution of a couple’s assets & liabilities. Generally, assets owned by both spouses must be classified as marital or non-marital. Therefore, the date range for marital property accrual must be determined. Typically, the court will then set a date for valuing the disclosed assets and liabilities. Once this occurs, distributing marital assets is next. If there is an unequal distribution, the court must issue an order explaining why. This should include substantial evidence directed at specific factors that impact property distribution. The judge must also issue an order identifying each spouse's separate assets and liabilities to provide more context for the distribution scheme in general. Property can be distributed in periodic or lump-sum payments. If applicable, the court will typically also address the issue of alimony.
Equitable distribution is the method by which the Family Law courts will use if you and your spouse can't come to an agreement on how to split assets on your own. You could also have a prenuptial or postnuptial agreement in place that dictates how some or all your assets will be split in a divorce. But if your property distribution isn't already predetermined by a marital agreement, letting the judge make all the decisions isn't your only option. You and your spouse can also come to an out-of-court agreement that isn't strictly equitable distribution.
When you hire a divorce lawyer, clearly, you want someone who can captivate and convince the judge. But ideally, you will spend as little time as possible in court during your divorce. Being a skilled negotiator is just as important as trial experience for a divorce lawyer. Your attorney might be able to negotiate a favorable property division agreement without the judge's input. This can ensure that you get to keep the assets you truly care about and saves you the fees of going to trial. It also saves you the time and hassle of going to court.
Even the best negotiators can't reach a fair agreement with some parties. Before heading to trial, you may want to consider utilizing mediation to resolve at least some of your divorce issues. Mediation is when a neutral third party, the mediator, helps guide you through negotiations in a civilized manner. Attorney representation isn't required, but either spouse can bring their attorney to divorce mediation. While mediation can be expensive, the amount it saves you in the far long can be far more. Mediation might be able to resolve your divorce issue in a few hours-long sessions, or even just one morning or afternoon. The cost this saves your family might be more than financial. Many families, especially those with young children, appreciate the less-combative nature of mediation. Your divorce attorney should be knowledgeable about mediation and be able to provide you with more information if you're interested.
Some assets are easier to place a value on than others. And while pensions, 401(k)s, and other ERISA-qualified savings accounts have numerical values, it can be complex to attribute how much of that is marital property. In Florida divorces, it must be done using a QDRO or Qualified Domestic Relations Order. Without a QDRO, your retirement plan could mistakenly be distributed entirely to your spouse instead of you. Your QDRO will contain specific language that directs the administrator of your retirement account to distribute it precisely.
You can complete your QDRO after your divorce is filed. You also have the option to file it along with your divorce petition and accompanying documents. Additionally, you can submit your proposed QDRO to your plan's administrator for prior approval. This can be beneficial because finalizing a QDRO may take some time that you didn’t initially account for.
There are a few factors the court will analyze when reviewing a QDRO in Florida. The length of the marriage is typically one of the top factors considered. A spouse from a marriage of a long duration is typically due more than someone who was only married for a few months or years. Both spouses' financial circumstances and debts will be considered as well. The judge may also consider each spouse's contributions to marital and non-marital assets.
A marital estate is all of the property in which both spouses have an ownership share, including:
· Bank Accounts
· Investment Accounts
· Other assets
Some assets may be complex to divide. This is especially true if either spouse made significant pre-marital contributions. A marital estate also includes debts owed by the spouses. These need to be divided in a divorce, just like property. One spouse can also cede their share in an asset to offset their share of a debt. For example, one spouse may let the other spouse keep their third shared vehicle in exchange for paying off their shared credit card debt. Or one spouse may "buy out" the other spouse's share of the marital home using their share of a marital savings account.
The answer to this isn't always as simple as "when you got married." The court will consider the duration of the partnership if the couple shared resources while not legally married. This could be when the couple moved in together, put a down payment on a home, and more. It’s important to note that there is not a one-size-fits-all solution this issue, as there are many different factors that may affect the date when you began accruing marital property. Similarly, the date marital property stops accruing may not be so clear as well. For example, many spouses continue to live together while divorce proceedings are underway.
Family law courts recognize financial and non-financial contributions to the marriage. If your spouse didn't work because they were taking care of your marital home and children, this would not typically/generally count against them in property division. If one spouse largely took care of bills and domestic duties, this would be a factor considered more during alimony. You can expect that your spouse's contributions around the home will be viewed just as valuably as your financial contributions in divorce court.
This can be one of the most complicating factors of a divorce if you aren't amicable with your spouse. Your business could be a side gig or passion project, or it could be how you plan to sustain yourself for the rest of your life. We see some divorcing spouses who are friendly and can continue working together. However, some spouses will fight bitterly over a business, just like any other marital asset. It is better to reach an agreement regarding a business out of court. Otherwise, the judge could make a decision for you to sell or divide in a way that doesn't suit your needs.
Equitable distribution is the doctrine the court will use if you can't reach an agreement outside of court. You and your spouse are free to negotiate a divorce agreement dividing property in any way you see fit. The judge will sign off on most property division orders if both spouses agree (and it’s a reasonable result/resolution). The spouses can also agree on how to separate one portion of the marital estate out of court and have the judge decide how to split up the rest of the marital estate.
Divorce trials are different from trials you've seen on television in many ways, including that there are no juries involved. Rulings in your case will be made entirely by a judge. The same goes for any related matters, like child support and child custody.
Some people use the logic that if one spouse is ending the marriage when the other spouse doesn't want to, this should be reflected by how marital assets are distributed. This is not how equitable distribution works in Florida—being the spouse who files for divorce, the petitioner doesn't give you any advantage over being the spouse served with a divorce petition, the respondent.
Under equitable distribution law, gifts that the spouses give each other during the marriage are part of the marital estate. They are not considered separate property as they may be interpreted in some states. The name on an asset's title isn't definitive, either. You will most likely need to include gifts from your spouse when considering your marital estate's total value.
There is a common misconception that adulterers are punished in divorce court. However, unless you have specific terms in a prenuptial agreement, infidelity isn't relevant to property division in Florida.
Sometimes, spouses need access to their assets to get by before equitable distribution is complete. For example, one spouse may need access to a joint savings account, frozen for the divorce, to pay for their child's unexpected medical procedure. Under these circumstances, an interim distribution may be appropriate. The spouses can agree out-of-court to an interim distribution, or it can be ordered by a judge. Interim distributions are taken into consideration when the judge is making final equitable distribution orders.
Property division is entirely separate from child support and alimony matters. You are free to use these matters as leverage during negotiations for an out-of-court divorce agreement. But if your case proceeds to trial, the judge won't consider these matters when dividing your property.
At The Joseph Firm, P.A., you can always expect to receive the highest-quality legal representation. Our attorneys are experienced and knowledgeable in family law, including equitable distribution matters pertinent to a divorce case. We've had the pleasure of serving numerous clients in the South Florida area, and we're always ready and eager to help more clients reach the outcome they deserve.
When you're ready to discuss your case, The Joseph Firm, P.A. is ready to hear your story. Family Law attorneys experienced in equitable distribution matters at The Joseph Firm, P.A. prioritize helping our clients with assessing and navigating through equitable distribution, (as well as child custody, visitation, parental responsibility and more under Florida law).
A Family Lawyer from Joseph Firm, P.A., can make your family law issues easier for you, your child(ren) and family. We focus on divorce, child custody, paternity, modifications to time-sharing, and all other areas of family law because our team takes a personalized approach to every case, as we understand that every client's situation and needs are unique. We're committed to serving you in any way we can, striving to go the extra mile when you need us most.
Our firm offers case evaluations. To schedule a meeting with one of our Miami FL family law attorneys, call us at (305) 501-0992 or contact us online.