Property division Flashcards
Property division
Florida is a majority that follows CL marital property, as opposed to minority community property states.
Majority CL property states follow a formula for equitable distribution at divorce.
Equitable distribution
The court will divide marital property in a fair and equitable manner at divorce.
Split 50/50 is a starting point, but court has broad discretion to adjust.
Marital property
Property acquired during the marriage is presumed to be marital property.
Non marital or separate property
Property acquired before marriage and after the marriage terminates.
Property excluded as marital by parties’ valid agreement.
Property acquired by gift, bequest, devise, or descent.
Property derived from nonmarital assets.
Characterization of specific property
*Title of not determinative of characterization unless it’s titled as TBE
Active appreciation
Passive appreciation
Gifts between spouses during marriage
Retirement benefits, pensions, profit sharing, and military benefits.
Personal injury proceeds
Goodwill
Professional licenses
Expectancy
Social security
Debts
Active appreciation
- the enhanced value of nonmarital property that is the result of the efforts of a spouse or a contribution from martial property.
- active appreciation of nonmarital property during marriage is considered marital property.
Passive appreciation
- the enhanced value of nonmarital property due to market factors, inflation, or other economic factors.
- passive appreciation of nonmarital property is still nonmarital
Gifts between spouses
Gifts between spouses during marriage is considered marital property.
Retirement benefits, pensions, profit sharing, and military benefits.
whether vested/non-vested, that accrued during marriage are considered marital property.
Personal injury proceeds
allocated between martial & nonmarital property.
Award for pain & suffering: nonmarital
Award for lost wages: marital
Award for medical expenses: marital
Goodwill
Goodwill of a marital property business is marital property.
Professional licenses and degrees
nonmarital
Expectancy
Possible future interest is nonmarital
Social security benefits
nonmarital
Debts
debts are equally divided.
Required financial disclosures
- financial affidavits
- three years of tax returns
- Pay stubs for three months of current income
- Loan applications
Factors regarding equitable distribution
- length of marriage
- economic circumstances of each spouse
- contributions of each spouse during the marriage (including homemaking and child rearing)
- Contributions to the education or career of the other spouse.
- Interruptions to a spouse’s career or education.
- Interest of one spouse to retain an asset such as a business or professional practice.
- Contributions to the production of income or incurring liabilities.
- Intentional destruction of marital property
- Retention of the marital residence for children
- Any other factors the court finds necessary and just.
Interim (partial) distribution
When divorce drags on for awhile
Allowed for good cause.
Credited in the final allocation.
Final distribution
If contested, the ct must issue factual findings supporting its decision based on substantial evidence.
Cash payment can be awarded.
The court cannot order a party to keep an ex-spouse as a life insurance beneficiary, but the parties can agree to this.
Final distributions credits and setoffs in sale of marital home
Court can issue credits and setoffs in sale of marital home - factors:
- use and possession of marital home
- alimony
- child support
- value of the party in possession
- loss of value and occupancy to the party out of possession
- tax consequences including mtg interest deductions and capital gains
- any other factor the ct finds necessary and just.
Award of marital home to one party after consider the best interest of minor child and other equities - factors:
- age of children
- health of children
- special needs
- school details
Modification of final property settlement
final property settlement cannot be modification.
exception - fraud, but motion must be filed within 1 year.
Attorney’s fes
can be awarded to either spouse.
Factors:
- funds available or lack thereof
- duration of litigation
- scope & history of litigation
- harassment
Collaborative law process
Method to reach agreement resolving family issues in nonadversarial process.
Collaboration is not compulsory.
Either party may terminate process at any time.
Communications during collaboration are confidential & privileged.
Parties usually retain 1 expert, 1 accountant, and 1 child psychologist that they both agree on.
