Division of Marital and Non-Marital Assets

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:

1. Either spouses’ contribution to marriage in terms of caring and educating the children as well as duties as homemaker
2. The parties’ economic situation
3. Length of the marriage
4. Interruption of educational opportunities or personal careers of either spouse
5. Any contribution towards educational opportunities or personal careers by one spouse to the other spouse
6. The desire to keep any asset, including an interest in a professional practice, business, or corporation. The desired asset(s) must be intact and free from interference or claim by the other spouse.
7. The contribution of each party to the acquiring, enhancing, and producing of income or the improving of said income as well as incurring liabilities for said income for both marital and no-marital assets of each spouse.
8. Is it a good idea to retain the marital home to be used as a residence for a dependent child/children or any other person and when it would be fair to do so. Additionally this decision needs to be in the best interest of the child/children or other person and the parties need to be able to maintain the home until the child/children is emancipated or until a court of authorized jurisdiction otherwise ends exclusive possession. First the court will determine if it is in the best interest of the dependent child/children to reside in the marital home and, if not, whether other equities would be best served by giving another party possession and exclusive use of the marital home.
9. If either party intentionally uses up, wastes, squanders or destroys marital assets 2 years before or after filing the petition for dissolution of marriage
10. Any other factors which are necessary to allow fairness and equity between spouses

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):

1. “Clear identification of non-marital assets and ownership interests”
2. “Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset.”
3. “Identification of the marital liabilities and designation of which spouse shall be responsible for each liability”
4. “Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.”

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.