Recently in Equitable Distribution Category

March 25, 2014

Distributing marital assets before the case includes

If you can show "good cause" to the court, you may be entitled to an interim partial distribution of marital assets.

Good cause is defined as extraordinary circumstances that require an interim partial distribution. In order to obtain this type of relief, you are required to file a sworn motion setting forth specific factual basis for the relief that you are seeking. You would have to demonstrate to the court good cause as to why the court should not defer its ruling until the final hearing.

As just one example, employing this technique for an interim partial distribution of marital assets can be extremely helpful if one person is in need of immediate funds,

There are many, many situations that would require the necessity of seeking an interim partial distribution award. The point to note here is that you do not have to wait until you your case concludes in order for you to receive money or other marital assets.

March 25, 2014

Will our property be divided equally?

When you are seeking a divorce, the Florida courts will equitably divide the property that was acquired during your marriage. Equitably does not necessarily mean equally. his property is commonly referred to as marital assets.

Florida law provides that it would be a good starting point to divide marital assets 50-50. If the court intends on making a distribution of marital assets that is not equal, the court is required to consider a list of items, and to make specific findings of fact in the final judgment as to why the distribution is not equal.

The Florida statute which gives the judge authority to divide the marital assets is found under Florida statute 61.075, which is known as the Equitable Distribution statute.

If the court intends on making an unequal distribution of marital assets the court will examine the following list:

The contributions to the marriage by each spouse, including contributions to the care and education of the children and services as a homemaker.

The economic circumstances of the parties.

The duration of the marriage.

Any interruption of personal careers or educational opportunities of either party.

The contribution of one spouse to the personal careers or educational opportunities of the other spouse.

The desirability retaining any asset, including an interest in a business, Corporation, or professional practice, intact and free from any claim or interference by the other party.

The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets the parties.

The desirability retaining the marital home as a residence for any dependent child of the marriage, or any other party when it would be equitable to do so, or it is in the best interests of the child or that party.

The intentional dissipation, waste, depletion, or destruction of marital assets have to the filing of the petition or within two years prior to the filing of the petition.

Any other factors necessary to do equity and justice between the parties.

The division of the assets that have been accumulated during the marriage is usually not the most difficult task for a judge. The more complicated issue usually is placing values on various items of property the court intends on dividing.

The issue of dividing the property can often times become complicated and complex, depending on the nature of the specific type of property involved.

Please visit my website at www.AlanBurtonlaw.com for more information about my background and experience. I have well over 30 years of experience litigating divorce cases in South Florida, including courts in Fort Lauderdale, Delray Beach, Miami, West Palm Beach and throughout the region. My primary office is conveniently located on Glades Road, just west of I-95 in Boca Raton.

My initial consultations are always free. I would urge you to call me and meet with me, so that I can educate you as to your legal rights.

March 25, 2014

Can I keep the house?

I know that divorce can be a very scary time in your life. I know that you have many questions to which you do not have answers. I am a very capable and experienced divorce attorney, and I can guide you through the divorce process and give you the answers you will need. I know I can make you feel at ease throughout the divorce process.

The question frequently arises as to whether or not one person or the other person can continue to reside in the marital home after divorce. The answer to that question is resolved by the specific circumstances and facts that are applicable in your particular situation.

If the home was acquired during the marriage, and there are no minor children, then generally one person or the other can buy out the other person's interest. In that manner, you could become the sole owner of the home.

If you are unable to immediately acquire the other spouse's interest in the home, an option may be to enter into an agreement for temporary occupancy of the home for a set number of years. This might give you the time you need to get your life organized after a divorce, and arrange for financing to buy out your ex-spouse's interest in the home.

The situation is a little bit different if you have minor children. Generally speaking the courts will allow the primary caregiver to continue to reside in the marital home with the minor children, until the youngest of the children attains the age of 18. At that point in time, the house is usually sold and the proceeds divided equally.

Reading a blog can only give you a limited amount of information regarding this issue. It is always best to meet with a lawyer face-to-face and to discuss the specifics of your situation. Not only are you getting the information you need regarding your particular issue, your also have the opportunity to meet the lawyer who is going to be representing you. You should feel comfortable with your lawyer, feel that you can trust your lawyer, and that he will be responsive to you throughout the process.

I would encourage you to call my office, and to schedule a free consultation. My free consultations are in my office and I do not limit you to a telephone consultation. My offices are located in Boca Raton and Fort Lauderdale, Florida.

You can reach me at any time during normal business hours at 954-229-1660. After normal business hours, feel free to call me at 954-295-9222.

August 9, 2012

Continuing as partners in the family business after divorce

Married couples acquire many things together over the course of their marriage, including homes, vacation homes, bank accounts, automobiles, and stock portfolios. They frequently start businesses together as well.

What happens to the family business after divorce? How does it get valued, how does it get divided, who gets to continue to run the business .... these are just a few of the questions that need to be addressed in this situation.

Generally speaking, the courts do not like to keep the parties together in a business after a divorce. That being said, the business would have to be valued by a professional, and one party would have to make arrangements to buy out the other party's interest. This is the scenario which plays itself out most often.
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There are those rare occasions when divorcing couples can, however, continue to operate a business together if they can agree on that arrangement. A story was reported today in the New York Post that dealt with the continuing operation of the Philadelphia Eagles by the divorcing owners, Jeffrey Lurie and his wife.

Although their particular situation is not generally the norm, it does occur. If you have questions about your particular business, professional practice, or any other jointly owned enterprise, it would be a good idea to obtain some professional advice from an attorney experienced in these matters.

August 7, 2012

The importance of a prenuptial agreement

Why is a prenuptial agreement important and what purpose does it serve? A prenuptial agreement is a contract between two adults, and it can cover a myriad of issues, limited only by the imagination of the contracting parties.
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A prenuptial agreement most definitely, and frequently will, alter the rights of the parties should a divorce subsequently occur. Many agreements provide for the complete waiver and relinquishment of alimony and other support obligations from one party to the other. However, under Florida law, a waiver of temporary alimony under an agreement is unenforceable. You may wish to confer and consult with an experienced divorce attorney regarding this, as well as any other aspects of a prenuptial agreement.

Valuable property rights can also be given up under the provisions of a prenuptial agreement. In Florida, marital assets are most frequently divided 50-50 upon a divorce, so if one party feels that they will be contributing to the marriage in a greater proportion, they might want to provide for that contingency.

The actress Courteney Cox, who is involved in a divorce proceeding with David Arquette, apparently overlooked the importance of a prenuptial agreement. You can read her story now by following the link to her story in Forbes.

Although a marriage is considered a "partnership", that partnership does not necessarily have to be an equal partnership. This, in essence, is what a prenuptial agreement is all about. Courteney Cox may learn an expensive lesson in failing to participate in the execution of a prenuptial agreement.

Prenuptial agreements must, at a minimum, include complete financial disclosure by both parties; be executed without duress; and each party should have independent legal advice. Many times the validity of agreements are challenged, so a financial sanction should be assessed against the challenger who does not succeed in their endeavor to void an agreement.

Further information may be obtained on this area of the law by contacting Alan R. Burton, Esq. directly. Appointments are available in Boca Raton and Fort Lauderdale.

August 6, 2012

Set offs and credits from the marital home in Florida

A person claiming entitlement to any credits or set offs fom the marital home must provide for these items in their marital settlement agreement.

1387294_rural_yellow_villa.jpgIf there is no agreement, and this issue is to be resolved by the court, the court will consider the factors in Florida Statute 61.077.

Among those factors are the following:

Whether exclusive use and possession of the home is being awarded
Whether or not alimony is being awarded
Whether child support is being awarded
The value of the use and occupancy to the person in possession
The value of the loss of use and occupancy to the person not in possession
Which party will be able to claim the deductions associated with the property, such as
Taxes, interest, etc
Capital gains taxes
Any other factor necessary to do equity

Many of these items can be overlooked when you are involved in the mediation process, and considering the disposition of the marital home. Don't overlook the importance of having a competent, well qualified attorney to represent your interests in your divorce case. There are many issues that an inexperienced litigant can easily overlook.


August 5, 2012

Divorce, a private matter

Generally speaking, a divorce should be a private matter. The proceeding often times involves sensitive and personal issues, which should not be made public. However, in Boca Raton, Fort Lauderdale and in other courtrooms throughout south Florida, contested divorce proceedings are conducted everyday.

1267479_broken_heart_pic.jpgMany times someone will say something, in a fit of anger or for other reasons, and then their statement comes back to haunt them in court. Never say anything that you do not want repeated in open court.

Not only are your statements admissible in court, but all of your postings, photographs and comments that you place in the public arena on social networks, such as Facebook and Twitter, become open game. Be careful what you say or do during a divorce....it could harm your case and significantly impact the outcome.

Most recently there has been a barrage of public divorce cases and separations involving celebrities, including Tom Cruise, Stevie Wonder, and Kristen Stewart, just to name a few.

You do not want to achieve your notoriety in the context of your divorce case.

August 4, 2012

Equitable distribution of retirement benefits, 401(k)

Equitable distribution of retirement accounts in Florida, including 401(k) accounts, is governed by Florida Statutes 61.075.

To first determine if in fact a particular retirement account is a marital asset, you first have to understand the definition of a marital asset. A marital asset is defined as any asset acquired during the marriage, either individually or in joint names. Although there are other aspects to this definition, this is the primary definition.

Marital assets also include all vested and non vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs.

We can see that retirement accounts, including a 401(k) account, even if it is in the name of one party, it will be considered as a marital asset if all of it or a portion of it was acquired during the marriage.
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Giving up any portion of a retirement account that was accumulated during the course of a marriage can be a "difficult pill to swallow." The usual reaction by an individual is that "I worked hard my whole life for that money", and "I'm not going to give up one penny of of it."

You may not necessarily have to give up a portion of the asset, but you most certainly will have to give up 50% of the value, and offset it against other assets.

Psychologically, I know it is difficult to surrender an asset many consider to be very personal. A recent article from a Jamaican Newspaper demonstrates the global aspects of an individual's view of his or her retirement accounts. They will fight to the end to protect what they perceive as their own individual assets.

March 26, 2012

Are engagement rings marital property and subject to equitable distribution?

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.

An interesting twist to the engagement ring story occurred in the case of Randall v. Randall, 56 So3d 817 (Fla. 2nd DCA 2011). In the Randall case, the judge treated the engagement ring as a family heirloom, and provided that the husband could hold the ring, as long as he delivered the ring to his children as he saw fit.

The wife promptly filed an appeal of this ruling, and she easily prevailed on her appeal. The appellate court followed the general rule that an engagement ring is a gift, in contemplation of marriage, and once that marriage occurs, the ring belongs to the wife.

An engagement ring is simply not subject to equitable distribution, and the trial judge has no jurisdiction over the ring.

March 26, 2012

Zealous divorce attorney representation

We all know that divorce is an extremely difficult time for people to experience. Emotions run high, and often time, all sense of reason and reasonableness vanish during divorce proceedings.

Some people like to amicably resolve their differences, and move on with their lives. Others, however, would prefer to make their soon to be ex-spouse's life a miserable experience for months and years ahead.

600957_hulk.jpgLawyers have an ethical obligation to represent their clients as zealously as possible, within the bonds of the law. Apparently one divorce attorney in New Mexico decided that there were no boundaries under the law, and that he was at liberty to take matters into his own hands in a divorce proceeding. He gives no meaning to zealously representing his client.

Aggressive representation was given a whole new meaning when this attorney took control of his client's affairs. This is not the best way for an attorney to proceed in a divorce case or any other case for that matter.

Check it out! Watch the New Mexico divorce attorney go to work. You will be shocked.

March 26, 2012

Equitable distribution of retirement benefits, military benefits, pensions, and other assets

Military retirement benefits are marital assets and subject to equitable distribution. Florida Statute 61.076. The exception is that military retirement benefits that are based on a disability are excluded from equitable distribution. Abernethy v. Fishkin, 699 So2d 235 (Fla 1997).

Disability pension and benefits are not marital assets, and are not subject to equitable distribution. See Hanks v. Hanks, 553 So2d 340 (Fla. 4th DCA 1989). The reason for this is because the benefits are personal to the employee; it represents compensation for injuries or lost wages sustained on the job.

Federal social security benefits are not divisible as marital assets upon a divorce. Johnson v. Johnson, 726 So2d 393 (Fla. 1st DCA 1999). Social security represents social insurance, and it is not considered a property interest under the law.

A portion of workers' compensation benefits and personal injury claims are marital assets. The portion of the award representing past lost wages, loss of earning capacity, and medical expenses is a marital asset. The portion of the award, which represents future lost wages, loss of earning capacity, and future medical expenses is the separate property of the spouse who was injured. See the case of Weisfeld v. Weisfeld, 545 So2d 1341 (Fla. 1989) for a more detailed analysis of this particular subject.

pile of money desktop.jpgUnvested or contingent options are also marital assets. Florida law is replete with cases on this subject matter. These assets were created by marital labor that are capable of valuation and distribution in the event that monies are realized in the future upon the sale of the options.

January 14, 2011

Is jewelry a marital asset and how is it valued?

diamond ring desktop.jpgJewelry is clearly a marital asset if acquired during the course of the marriage, and it is therefore subject to equitable distribution.

Placing a value on jewelry is a more difficult question. There is ample case law that sets forth the principle that valuations must be based upon competent evidence. Noone v. Noone, 727 So.2d 972, (Fla. 5th DCA 1998); see also Knecht v. Knecht, 629 So.2d 883 (Fla. 3d DCA 1993).

In Lassett v. Lassett, 768 So.2d 472 (Fla. 2d DCA 2000), the husband tesified that his wife's jewelry was valued at $10,000. There was no other evidence. The trial court stated that this was not competent evidence as to value. His unsupported opinion as to the value of the jewelry is not sufficient to warrant the distribution of that amount to the wife.

The only evidence the wife had as to the value of the husband's jewelry in the Noone case was that apparently he had told her it was worth $10,000 at some point in time. This was not considered competent evidence by the court. Alternatively, the husband valued his own jewelry at $1,500 on his financial affidavit, which the court deemed to be competent evidence.

December 29, 2010

Financial affidavits in divorce proceedings

coins question mark desktop.jpgIn every dissolution of marriage action filed in Boca Raton, Fort Lauderdale, or anywhere else throughout the state of Florida, the parties are required to file a financial affidavit which details their income, expenses, assets and liabilities. The importance of filing this document in an accurate manner cannot be over emphasized.

What happens when assets are not disclosed by a party to the divorce proceeding?

In Romero v. Romero, 959 So.2d 333 (Fla. 3DCA 2007), the husband failed to disclose stock options he had received over the course of the marriage, and which the wife was unaware of. They were ultimately discovered by her after the proceedings concluded, and she subsequently tried to reach them through the use of a constructive trust.

The trial court concluded that these options were marital assets because they were awarded to the husband based upon his past qualifications and experience over the course of the marriage.

The wife testified that had she known about them, she would have wanted half; that she would have exercised them; she would have sold them, and would have used the proceeds to reduce the mortgage on her home.

The decision of the trial court, awarding the wife half of the options, was ultimately reversed on appeal. The appellate court ruled that the wife failed to establish the elements of fraud, and "impermissibly stacked inference upon inference, with the full benefit of hindsight, culminating in a final judgment based solely upon speculation."

What makes this case rather interesting is the fact that neither party completed a thorough examination of their assets when they drafted their marital settlement agreement. Given theses circumstances, the court concluded that the husband did not commit any fraud in not disclosing his stock options.

It is important to recognize that a petition to set aside a final judgment in a divorce case cannot be done simply because of non-disclosure on a financial affidavit. There must be more. The moving party must still establish a ground for setting aside the judgment pursuant to Florida Rules of Civil Procedure, Rule 1.540(b)(3).

In other words, a movant must show not just that the affidavit contained a false statement of a material fact, but also that it was fraudulent, i.e., that the person making the false statement knew that it was false, that the false statement was made with the intent that the other party would rely on the false statement, and that the other party actually relied on the false statement and was thereby prejudiced. Ward v. Atl. Sec. Bank, 777 So.2d 1144, 1146 (Fla. 3d DC 2001).

The moral of the story is to exercise due diligence in not only completing your financial affidavit, but to also conduct your own extensive investigation into discovering the nature and extent of all marital assets. For more valuable information regarding this subject or any other subject that you may have an interest in, please click the following link which will take you over to my site, www.alanburtonlaw.com.

December 27, 2010

The importance of the valuation date in dissolution of marriage actions

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.

Another point of contention in this case involved the severance payment received by the husband. That payment was substantial. However, since the right to receive the payment did not come into existence until after the date the petition for dissolution of marriage was filed, the court had properly classified the severance payment as a non marital asset.

In this case the husband was an expert in "turning around" troubled companies. He was hired by Wild Oats Markets, Inc. as its president and chief operating officer for a number of years. He had received stock options from the company which he exercised during the marriage. The trial court chose to value those assets as of the date of the trial, as opposed to the date of filing the petition for dissolution of marriage.

The stock that the husband received apparently grew in value by a considerable amount between the date of filing the petition for dissolution of marriage annd the date of trial. The husband had argued that the increase in the value of the stock was occasioned by his post petition efforts to make the company more efficient and profitable, and therefore the proper valuation date should have been the date of filing the petition for dissolution of marriage, rather than the date of trial. It would have been unfair for the wife to benefit from his efforts made after the date of filing.

Although his arguument was very logical, the court sided with the wife with this issue, since there was conflicting evidence presented at trial as to what exactly was the cause of the stock rising in value. The trial court is afforded a wide latitude of discretion, and unless that discretion is abused, the decision cannot be reverersed on appeal.

September 20, 2010

Are personal injury settlements marital assets?

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.
The trial judge apparently felt that because the award was deposited into a joint account, and were utilized, at least in part to pay marital debt, that the funds became a marital asset.

The appellate court, upon further review, determined that the trial court had applied an incorrect legal standard when deciding if the award was marital or not. The fact that funds are deposited into a joint account does not necessarily convert separate property into a marital asset. The court needs to "dig a bit deeper" and find out exactly why the funds were placed into a joint account. If the other party's name was on the account, the funds may have been placed in the particular account for convenience only, and the funds would not lose their separate character. Grieco v. Grieco, 917 So. 2d 1052 (Fla. 2d DCA 2006.
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Extreme caution must be exercised when one receives funds which could be considered as separate property, and they become commingled. There is a high risk of those funds losing their separate character, so exercise caution.