Probably the most difficult and contested part of a dissolution of marriage proceedings is the determination and proof of what are marital assets and what are non-marital assets. This decision is then followed by another difficult decision and that is the division of the marital assets. Each state has their own set of guidelines determining definition and distribution of assets. Florida is not a community property state where all marital assets are divided equally between the spouses. In Florida, courts have chosen to distribute marital assets equitably, that is fairly. In many instances fairly is also equal but there are a number of variables, which can determine equitable and make this type of distribution difficult and sometimes even tricky. If there are marital assets of high value to be distributed or considerable marital debts a Family Law attorney with expertise in these matters is essential. Attorney Grant Gisondo, PA, practicing in West Palm Beach, is well qualified to assist you in all areas of equitable distribution.
An asset to be considered in a divorce proceeding is, according to investorwords.com “any item of economic value owned by an individual or corporation, especially that, which could be converted to cash.” Some examples would be property including the marital home, vehicles, boats, family business interests, savings, investments, and retirement plans. Other assets could be antiques, high end furniture, jewelry, paintings, expensive electronics, and collections of value such as books, stamps, or guns, to name a few. All assets must be cataloged as marital or non-marital.
These are assets, which are obtained before the marriage takes place. They must belonging solely to one spouse or the other and continue to do so throughout the entire marriage. There must be firm proof of ownership prior to marriage and the continuation of sole ownership during the marriage. Also, if there is a prenuptial agreement (see prenuptial agreements) or postnuptial agreement (see postnuptial agreements) assets named in the agreement will be considered non-marital if so designated. Property, gifts, or money, acquired from a third party or inherited by either spouse are considered non-marital and theirs to keep following the divorce. Increased value of a non-marital asset is also considered as belonging solely to that spouse as well.
These assets are those, which are obtained jointly or by either party and used during the marriage. They also would include assets obtained prior to the marriage but given to joint ownership following marriage such as a home, vehicle, or family business. Gifts from one spouse to the other are also considered marital assets, as are retirement plans and most checking and savings accounts. Business interests where marital monies and spousal time and involvement are indicated are marital assets as well. These are just some of the major areas of marital assets; the list is long and determination can become complicated.
Yes, debts will be divided between spouses as part of equitable distribution. The same basic guidelines that determine marital and non-marital assets will apply to assigning debts to one party or the other. Again, substantial proof is necessary for a final determination to be made. Any debt named in a postnuptial agreement as marital or non-marital will be considered as such.
Noting that equitable distribution means fair, not equal, the state of Florida has mandated a list of guidelines to be considered when dividing a couple’s marital assets. The judge starts with the premise of equal division but there are many times when equal is not equitable. The state has therefore outlined the following guidelines found in the 2015 Florida Statute 61.075 and these are paraphrased as follows:
In addition to the above guidelines, when there is a contested dissolution and no stipulation and agreement has been entered and filed, factual proof and qualified substantial evidence, using as a reference the above factors, must support marital liabilities and marital assets. In order for distribution, whether equal or equitable, of both marital assets and liabilities, specific, written findings of fact must be submitted to the court. These findings must include, as quoted from Florida Statute 61.075 part (3):
Sometimes there will be a need for an interim, partial distribution of marital assets or liabilities and the court will, upon a “sworn motion, set apart those non-marital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities”. Valid cause and substantial proof must be provided for an interim, partial distribution to take place and credit for such distribution will be credited when deciding the final outcome.
If it were at all possible a couple would benefit from establishing a marital agreement deciding the distribution of assets and debts. This can be done at the required pre-trial mediation or before in a postnuptial agreement properly written, signed, and notarized. A prenuptial agreement is also helpful, especially in determining non-marital assets and debts. In a recent radio talk show, More Than Money, Attorney Gisondo pointed out that the more a couple can agree on prior to the final dissolution, the more control they have over their own final outcomes.
In addition to collecting substantial proof and evidence of what are marital or non-marital assets and debts, the answer to this, without a doubt, is to find a Family Law attorney well qualified in dissolution of marriage with an included experience in equitable distribution of marital assets and debts. If you live in Palm Beach, Martin, St. Lucie, Miami-Dade, Broward, Orange, or Hillsborough county you can expect to find such an attorney whose Family Law practice is located in West Palm Beach. His name is Grant Gisondo, the founder of Grant Gisondo, P.A. Not only will he answer your questions, he will see you through the entire maze of equitable distribution to an outcome best suited to your particular and individual case. His experience and education have taught him, in his own words, “ I will always keep an open ear and open mind and will fight your fight as if it was my own.” For a free, initial, in office, in person consultation, please call (561) 530-4568 to make an appointment. Attorney Gisondo will meet with you and show how he can guide you through equitable distribution as part of the dissolution of marriage.