Florida Property Issues Divorce Attorney
When you get over the initial grief of having to go through a divorce you might find yourself quickly worried about what will happen to your marital property and assets.
Property Division and Debt: Equitable & Fair Distribution
If you don’t have any marital property or anything to divide between you and your spouse, just say so. If you do, you need to tell us how you intend to divide what you have (ASSETS) and what you owe (DEBTS).
Divorce and Florida law defines assets and debt as either marital or nonmarital property.
Here are definitions:
Assets – includes everything owned by you and your spouse, marital property can include, cars, furniture, bank accounts, jewelry, life insurance policies, businesses or retirement plans. An asset may be marital or nonmarital, but that distinction is for the court to determine only if you and your spouse do not agree on a fair split. Don’t forget contingent assets, which are assets you may receive later, such as income, a tax refund or a bonus.
Marital Asset – generally, anything that you and/or your spouse acquired or received (by gift or purchase) during the marriage. For example, something you owned before your marriage may be non-marital. An asset may only be determined to be marital by agreement of the parties or determination of the judge.
Nonmarital Assets – generally, separate property or personal property owned by you or your spouse. Nonmarital assets may only be determined by either agreement of the parties or determination of the judge.
Debt – is everything owed by you or your spouse, including mortgages, credit cards, or car loans. A debt may be marital or non-marital, but, again, that distinction is for the court to determine only if you and your spouse do not agree on a fair split. Don’t forget contingent debt, which is debt you may owe later, such as payments for lawsuits, unpaid taxes or debts you have agreed to pay if someone else does not, such as a note you co-signed on.
Marital liability (debt) – generally, any debt that you and/or your spouse incurred during the marriage. A debt may only be determined to be non-marital by agreement of the parties or determination of the judge.
Non-marital Liability (debt) – generally, any debt that you or your spouse incurred before your marriage or since your separation. A debt may only be determined to be non-marital by either agreement of the parties or determination of the judge assigned to your case. Judges DO NOT want to take control of your personal affairs but will IF you can reach an agreement.
How to Handle Marital Property Division and Debt in a Florida Divorce Case
Florida is an equitable distribution state. Most of the time it means equal but there are circumstances that may make the distribution less than equal. The issue for the divorce judge assigned to your case (assuming you do not resolve issues with your spouse) is what is fair under all circumstances.
If one spouse gambled away marital assets, the judge may take that into account when deciding how to divy up your marital property division and debt.
The Marital Home in a Florida Divorce: Who Stays? Who Goes?
- The home is sold and the proceeds are divided.
- The home is to be sold at some future date and the proceeds are divided at that time. If the marital settlement agreement allows one spouse to remain in the home for some time before it is sold.
- One spouse buys out the other’s interest in the home.
Consider Tax Implications of Divorce when Selling the Home
Make sure you have every tax advantage in keeping the house, the right to itemize deductions and deduct the mortgage interest and property taxes. That is another benefit of owning real estate.
Dividing Retirement Accounts in Florida Divorce
What type of accounts do you and your spouse have?
Defined Contribution Plans are plans in which the person has his or her own account and there is a sum-certain value in an investment account. The balance of the account builds as monetary value is added to the account and as the investment grows, it generates interest or dividends. These types of plans include 401(k) plans, profit-sharing plans, stock bonus plans, employee stock ownership plans (ESOP), and Individual Retirement Accounts (IRA).
Defined Benefit Plans are plans in which an employer promises to pay an employee a particular benefit when the employee reaches retirement age. Employers make contributions to the plan, and the contributions sometimes can be increased by the employee. The marital portion of the plan is the portion of the plan that was accumulated and earned during the period of the marriage.
How to Divide Retirement Accounts when You Divorce?
- Offset against other marital assets;
- Division of the Plans. A QDRO (Qualified Domestic Relations Order) is required. This document, once approved by the court, instructs the plan administrator on how to divide the asset. This is a very technical document which we do not prepare. Usually the parties agree to split the cost to have it prepared (usually about $500.00);
- Deferred Distribution until retirement.
The Florida property issues attorney Steven D. Miller, P.A. has years of experience in family law guiding clients through this difficult transition. For a free consultation for your family law needs, please contact us via our free online form.