Articles Posted in Non marital property

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When two people get married, it often makes sense to combine finances. Spouses open joint bank accounts and combine their incomes to help each other pay off debts–both pre-existing debts and new ones acquired during the marriage. In many situations, spouses may depend on one another to be able to cover their monthly bills. This can all lead to a messy situation if the spouses decide to get divorced.

During a divorce, Florida law requires the fair and equitable division of all jointly-owned property and this law applies to debts, as well. However, dividing up debts can be complex, especially if some debts are owned individually and others jointly. The name on the debt does not always mean that person will be solely responsible for the payments, however, and it is important to discuss debt division with an experienced divorce attorney who understands the relevant law. The following is some brief information regarding the division of certain debts in divorce:

Student Loans

Student loans are often individual debts unless the spouses cosigned on the loans or the loans were acquired during the marriage. In such cases, the loans would be considered marital debt and you may be held responsible for sharing the payment unless you and your spouse can agree otherwise. However, even if you agree that your spouse will be responsible for the loans, your name will likely remain on the loans and any failure to repay could affect your credit. Continue reading →

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698266_rings.jpgThe age old question, which invariably comes up time and time again. The answer to this question is determined by examining the reason why an engagement ring is given by one party to the other.

An engagement ring is a gift made upon the implied condition that a marriage is to occur. If a marriage does in fact occur, the courts will most likely follow the general rule that engagement rings are not marital assets subject to equitable distribution. Rather, they are the separate property of the recipient.

In the event a marriage does not occur, the chances are much better for recovery of the ring, since it was conditioned upon the subsequent marriage.

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desktop stock screen board.jpgIn every dissolution of marriage action, marital assets must be identified and valued. The critical question that is in dispute often times becomes as of what date are those assets to be valued?

Section 61.075(6), Florida Statutes (2004), provides a bright line rule for classifying marital assets and liabilities. Absent a valid separation agreement, the cut-off date for classifying marital assets is the date of filing the petition for dissolution of marriage. Schmitz v. Schmitz, 950 So.2d 462, 463 (Fla. 4th DCA 2007).

Often times, it is a much easier task to identify those assets which are marital, then it is to value them. The case of Odak v. Vitrano, 35 Fla. L. Weekly D1957a (2010) is instructive on this point.

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Generally speaking, the answer is no. Settlements from personal injuries are the separate property of the injured person. A portion of an award, if itemized to cover lost wages, or if awarded for loss of consortium, may be considered as a marital asset. Rarely is a settlement itemized, breaking down how the total was derived. See Mazzorana v. Mazzorana, 703 So. 2d 1187, 1189 (Fla. 3d DCA 1997).

When a personal injury settlement is commingled with other funds which are marital, or which are placed into a joint account, the situation becomes much more challenging for a trial judge. This was the very situation which presented itself in the case of Valentine v. Van Sickle, 35 Fla. L. Weekly D1663a, 2d DCA 2010.

In the Valentine case, when the husband was out of town, the wife created a new joint account and deposited the personal injury settlement check into the joint account. A portion of the funds were used to pay marital debts. At some point down the road, the wife transferred all of the money into a bank account in her own name.