Articles Tagged with Division of Property and Assets

In Florida, courts begin with the premise that the distribution of marital assets and liabilities will be equal.  Courts look at all of the following 10 factors to determine whether an unequal division of marital assets is appropriate:

(i) whether one of the parties has made an extraordinary contribution to the marriage that is above and beyond the contribution that spouses ordinarily make to a marriage;

(ii) whether the economic circumstances of the parties warrant an unequal distribution of marital assets;

A division of property and assets case was recently decided by the Florida Court of Appeal in a case captioned Hamilton v. Hamilton.  In this case, the husband appealed the Final Judgment of Dissolution of Marriage based upon the fact that the trial court awarded an unequal division of the parties’ assets to the wife.  The husband contended that the trial court improperly classified over fifty thousand ($50,000.00) dollars of husband’s credit card debt as nonmarital debt.

The Florida Court of Appeal ruled that marital assets and marital liabilities are all assets acquired and all liabilities incurred during the course of a marriage.  These assets and liabilities may be acquired during the course of the marriage by either spouse, jointly, or individually.  There is a presumption in Florida law that all assets acquired and all liabilities incurred after the date of marriage which are not specifically designated as nonmarital assets and nonmarital liabilities are presumed to be marital assets and marital liabilities.

In the case at bar, the husband incurred charges on several credit cards that were used to pay for business expenses and personal living expenses during the course of the parties’ marriage.   The trial court concluded that the husband’s business expenses were nonmarital debt because the Husband failed to provide the trial court with evidence that any portion of the debt was marital.  The Florida Court of Appeal reversed the trial court’s ruling.  The Florida Court of Appeal ruled that the trial court’s designation of the husband’s business expenses as nonmarital liabilities failed to comply with Florida’s statutory presumption that all assets acquired and all liabilities incurred during the course of a marriage, which are not specifically established as nonmarital assets and nonmarital liabilities, are presumed to be marital.  Absent any evidence that the husband’s business expenses were specifically established as nonmarital liabilities, they are presumed to be marital liabilities.  Since there was no evidence in the record that showed that the husband’s business expenses were nonmarital, the Florida Court of Appeal ruled that they were marital liabilities.

A division of property and assets case involving the exclusive use and occupancy of the marital home was recently decided by the Florida Court of Appeal.  In a case captioned Ortiz v. Ortiz, the husband and wife were married in 2010, and had three children. They lived in Tennessee for most of their marriage, and then moved to Florida.  The parties obtained a VA loan to purchase their home in Florida.  After the parties moved to Florida, the wife found employment and the husband started attending culinary school in Orlando, Florida.  When the husband’s culinary school in Orlando closed, the husband moved to Miami to attend culinary school.

The wife filed for divorce.  In the wife’s Petition for Dissolution of Marriage, the wife sought exclusive use and possession of the marital home.  The trial court awarded the Wife exclusive use and possession of the marital home until the parties’ youngest child reached the age of eighteen or the wife remarried.

The Florida Court of Appeal affirmed the ruling of the trial court.  The Florida Court of Appeal stated that the marital home, like any other asset, is subject to equitable distribution.  A trial court may deviate from the presumption that there should be an equal division of property and assets and may award one of the parties exclusive use and occupancy of the marital home under the following circumstances: (i) when it is desirable to retain the marital home as a place in which the parties’ dependent children should live, (ii) when it is in the children’s best interests, (iii) when it would be equitable to award one of the parties exclusive use and occupancy of the marital home, and (iv) when the parties are financially capable of maintaining the marital home.

In a division of property and assets case captioned Roth v. Roth the parties were married for twenty-nine years.  The Former Husband was seventy-four, and the Former Wife was fifty-eight.  Both had high school educations, and both worked in the automotive industry.  The Former Husband was in a car accident and suffered injuries.  The parties filed a personal injury lawsuit and received a settlement award of $28,154.00.  On the day before the Former Wife left the marital home, she withdrew $13,000.00 from the settlement funds.

The Former Wife testified that she used the portion of the settlement funds that she withdrew to pay for her attorney’s fees and to pay for her living expenses.  The Husband testified that he used a portion of the settlement proceeds to pay for his living expenses and expenses related to the parties’ home.

The trial court included the settlement proceeds in its division of property and assets in this case.  The Former Wife argued that the trial court erred when it included these funds in the Court’s equitable distribution because the funds did not exist at the time of the trial.  The Florida Court of Appeal agreed with the Former Wife’s position, and stated that ordinarily it is a mistake for a trial court to include assets in an equitable distribution scheme that no longer exist.

In a division of property and assets case captioned Roth v. Roth the Wife appealed the Final Judgment of divorce.  The parties were married for twenty-nine years.  At the time of the hearing, the Wife was fifty-eight and the Husband was seventy-four.  Both of the parties worked in the automotive industry.  The Husband was the primary income earner during the marriage.  The Wife was a stay-at-home parent after the parties’ son was born, and returned to the workforce when their son was in high school.

During the marriage, the Husband was in a car accident and suffered injuries.  The Husband and Wife filed suit and recovered $28,154.64.  The Wife withdrew approximately $13,000.00 of the settlement proceeds the day before she left the parties’ marital home. The Wife testified that she used these funds to pay for her attorney’s fees and her living expenses.   The Husband testified that he needed to use these funds to have an operation for an injury to his neck, because he could not afford it otherwise.

The Florida Court of Appeal ruled that in a personal injury case, a damage award is distributed in the following manner.  First, payments for pain and suffering, disability, loss of consortium, and loss of ability to lead a normal life are considered to be nonmarital property.  Payments for these loses belonged exclusively to the Husband.  Second, economic damages which will occur subsequent to the termination of the marriage, including lost future wages and future medical expenses are considered to be nonmarital and belong exclusively to the Husband.