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Articles Posted in Equitable Distribution

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.

94722_contract_signing.jpgA 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.

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:

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.

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.

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.

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.

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.

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.

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.

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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