Property division

Question 1

Property division

Answer 1

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.

Question 2

Equitable distribution

Answer 2

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.

Question 3

Marital property

Answer 3

Property acquired during the marriage is presumed to be marital property.

Question 4

Non marital or separate property

Answer 4

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.

Question 5

Characterization of specific property

Answer 5

*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

Question 6

Active appreciation

Answer 6

• 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.

Question 7

Passive appreciation

Answer 7

• the enhanced value of nonmarital property due to market factors, inflation, or other economic factors.
• passive appreciation of nonmarital property is still nonmarital

Question 8

Gifts between spouses

Answer 8

Gifts between spouses during marriage is considered marital property.

Question 9

Retirement benefits, pensions, profit sharing, and military benefits.

Answer 9

whether vested/non-vested, that accrued during marriage are considered marital property.

Question 10

Personal injury proceeds

Answer 10

allocated between martial & nonmarital property.

Award for pain & suffering: nonmarital
Award for lost wages: marital
Award for medical expenses: marital

Question 11

Goodwill

Answer 11

Goodwill of a marital property business is marital property.

Question 12

Professional licenses and degrees

Answer 12

nonmarital

Question 13

Expectancy

Answer 13

Possible future interest is nonmarital

Question 14

Social security benefits

Answer 14

nonmarital

Question 15

Debts

Answer 15

debts are equally divided.

Question 16

Required financial disclosures

Answer 16

1. financial affidavits
2. three years of tax returns
3. Pay stubs for three months of current income
4. Loan applications

Question 17

Factors regarding equitable distribution

Answer 17

1. length of marriage
2. economic circumstances of each spouse
3. contributions of each spouse during the marriage (including homemaking and child rearing)
4. Contributions to the education or career of the other spouse.
5. Interruptions to a spouse’s career or education.
6. Interest of one spouse to retain an asset such as a business or professional practice.
7. Contributions to the production of income or incurring liabilities.
8. Intentional destruction of marital property
9. Retention of the marital residence for children
10. Any other factors the court finds necessary and just.

Question 18

Interim (partial) distribution

Answer 18

When divorce drags on for awhile

Allowed for good cause.

Credited in the final allocation.

Question 19

Final distribution

Answer 19

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.

Question 20

Final distributions credits and setoffs in sale of marital home

Answer 20

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.

Question 21

Award of marital home to one party after consider the best interest of minor child and other equities - factors:

Answer 21

• age of children
• health of children
• special needs
• school details

Question 22

Modification of final property settlement

Answer 22

final property settlement cannot be modification.

exception - fraud, but motion must be filed within 1 year.

Question 23

Attorney’s fes

Answer 23

can be awarded to either spouse.

Factors:

• funds available or lack thereof
• duration of litigation
• scope & history of litigation
• harassment

Question 24

Collaborative law process

Answer 24

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.