Articles Posted in Division Of Property And Assets
March 27, 2025
by SmartSites
Divorce proceedings in Florida often involve the division of businesses. Courts typically effectuate the division of property and assets in a Florida divorce in such a manner as to allow the operating spouse to retain his or her ownership in the business. Florida Courts will not require spouses to remain in business together when one or both spouses do not want to continue to do. Courts will not award each spouse a one-half interest in a business and require them to continue to be business partners.
In a Florida divorce, courts will obtain a proper valuation of the business and award the business to one of the spouses. The court will then devise a plan of equitable distribution that is fair to both parties and that causes the least amount of interference with the business. The court will award the business to one of the spouses and require that spouse to fairly compensate the other spouse.
In a case captioned Bowen v. Volz, the lower court divided a business owned by a husband and wife. The trial court awarded each party a fifty percent interest in their business. The Florida Court of Appeal reviewed this decision and began by commenting on the lack of evidence that was presented to the trial court concerning the value of the business. The Florida Court of Appeal then reversed the trial court.
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March 27, 2025
by SmartSites
Divorce proceedings in Florida often involve the division of businesses. Courts typically effectuate the division of property and assets in a Florida divorce in such a manner as to allow the operating spouse to retain his or her ownership in the business. Florida Courts will not require spouses to remain in business together when one or both spouses do not want to continue to do. Courts will not award each spouse a one-half interest in a business and require them to continue to be business partners.
In a Florida divorce, courts will obtain a proper valuation of the business and award the business to one of the spouses. The court will then devise a plan of equitable distribution that is fair to both parties and that causes the least amount of interference with the business. The court will award the business to one of the spouses and require that spouse to fairly compensate the other spouse.
In a case captioned Bowen v. Volz, the lower court divided a business owned by a husband and wife. The trial court awarded each party a fifty percent interest in their business. The Florida Court of Appeal reviewed this decision and began by commenting on the lack of evidence that was presented to the trial court concerning the value of the business. The Florida Court of Appeal then reversed the trial court.
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March 19, 2025
by SmartSites
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.
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March 19, 2025
by SmartSites
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.
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March 19, 2025
by SmartSites
In making a division of property and assets in a divorce proceeding, there must be extraordinary circumstances to award an interim partial distribution. In Defanti v. Russell, the Florida Court of Appeal recently stated: “This is an appeal from the circuit court’s order granting the former wife’s amended sworn motion for summary judgment, which sought an interim partial distribution of marital assets in a dissolution of marriage case. The former husband’s estate argues that the former wife was not entitled to the interim partial distribution because she did not show the statutorily-required good cause. We agree with the estate and reverse.
The good cause requirement for an interim partial distribution arises from section 61.075(5), Florida Statutes (2012). Section 61.075(5), in pertinent part, states: If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities…..(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing…(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution. Section 61.075(5), Fla. Stat. (2012) (emphasis added)….We conclude that the former wife did not show without genuine issue of material fact that extraordinary circumstances required an interim partial distribution of her one-half share of the liquid assets. See id. (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”). As the husband’s memorandum in opposition argued, the former wife’s motion offered no showing of good cause, that is, extraordinary circumstances which required the interim partial distribution. Thus, the circuit court should have denied the former wife’s motion pending trial, at which time the court could have included the former wife’s one-half share as part of its determination of whether to impose an equal or unequal distribution of the parties’ marital assets and liabilities pursuant to section 61.075(1), Florida Statutes (2012).”
To speak with a Wellington Florida divorce attorney, contact Matthew Lane and Associates, P.A. at (561) 328-1111
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March 19, 2025
by SmartSites
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.
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March 19, 2025
by SmartSites
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;
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March 19, 2025
by SmartSites
Divorce proceedings in Florida often involve the division of businesses. Courts typically effectuate the division of property and assets in a Florida divorce in such a manner as to allow the operating spouse to retain his or her ownership in the business. Florida Courts will not require spouses to remain in business together when one or both spouses do not want to continue to do. Courts will not award each spouse a one-half interest in a business and require them to continue to be business partners.
In a Florida divorce, courts will obtain a proper valuation of the business and award the business to one of the spouses. The court will then devise a plan of equitable distribution that is fair to both parties and that causes the least amount of interference with the business. The court will award the business to one of the spouses and require that spouse to fairly compensate the other spouse.
In a case captioned Bowen v. Volz, the lower court divided a business owned by a husband and wife. The trial court awarded each party a fifty percent interest in their business. The Florida Court of Appeal reviewed this decision and began by commenting on the lack of evidence that was presented to the trial court concerning the value of the business. The Florida Court of Appeal then reversed the trial court.
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March 19, 2025
by SmartSites
In effectuating a division of property and assets in a divorce proceeding in Florida, enterprise goodwill represents the tendency of customers to return to a business regardless of the reputation of a person who works at the business. Personal goodwill is attributable to the reputation and continued participation of an individual who works at the business. The Florida Court of Appeals recently addressed this issue in Schmidt v. Schmidt.
In Schmidt v. Schmidt, the Florida Court of Appeals stated that: “Enterprise goodwill, defined as the value of a business “which exceeds its tangible assets” and represents “the tendency of clients/patients to return to and recommend the practice irrespective of the reputation of the individual practitioner,” is a marital asset subject to equitable distribution. Thompson v. Thompson, 576 So. 2d 267, 269 (Fla. 1991).
Personal or professional goodwill attributable to the skill, reputation, and continued participation of an individual is not a marital asset. id. at 270 (explaining ” ‘[a]ny value which attaches to the entity solely as a result of personal goodwill represents nothing more than probable future earning capacity, which … is not a proper consideration in dividing marital property’ “) . Thus, the value of personal or professional goodwill must be excluded when assigning a value to a business for purposes of equitable distribution. If a business only has value above its assets if a spouse refrains from competing with the business, it is clear that the value is attributable to personal goodwill. “The existence of a covenant not to compete signals the existence of personal goodwill. “When valuing the enterprise goodwill of a business, the necessity of a covenant not to compete is significant as it signals the existence of personal goodwill, which cannot be included in determining the value assigned to the business for purposes of equitable distribution. Walton v. Walton, 657 So. 2d 1214 (Fla. 4th DCA 1995), and Held v. Held, 912 So. 2d 637 (Fla. 4th DCA 2005), illustrate the point. In Walton, the trial court was faced with the task of valuing the husband’s accounting practice. 657 So. 2d at 1214-15. The evidence established that it was the husband’s name on the door, the husband who conducted the majority of client conferences, and the husband who was responsible for bringing clients to the practice…The trial court accepted the wife’s expert’s valuation for purposes of equitable distribution. This court reversed, finding that “[t]he most telling evidence of a lack of any institutional goodwill was the wife’s expert’s testimony that no one would buy the practice without a noncompete clause.”
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March 19, 2025
by SmartSites
In a Florida divorce, the value of a business is determined by valuing all of its assets and the amount of its liabilities. In Florida, businesses are valued according to their fair market value. Fair market value is the amount that a willing buyer would pay and a willing seller would accept. Enterprise value is the value of a businesses’ tangible assets and the willingness of customers to return (business goodwill). Personal goodwill is based upon the skill and the continued participation of the current owner in the business.
In a Florida Court of Appeal case captioned Soria v. Soria, the husband and wife were married in April 1988. The husband was the founder of a start-up limited liability company. At the time of trial, the company was carrying approximately $400,000.00 of debt. The company’s liabilities varied from $9,000.00 to $76,000.00 and the company’s assets varied from $147,000.00 to $190,000.00. The husband testified that he was essential to the operation of the business and that the business could not operate without him. The husband owned approximately 64% of the business and investors owned the remaining 36% of the business. After the divorce was filed, the husband transferred 30,000 of his shares in the company to his girlfriend in order to compensate her for her work for the company.
The par value of the company stock was a dollar per share. The trial court used the par value of the company’s stock to value the company. The Florida Court of Appeal reversed the trial court. The Florida Court of Appeal held that in making a division of property and assets determination involving a business, the value of the business is determined by assessing its fair market value. The Florida Court of Appeal stated that the fair market value of the business in question was the amount of money that a willing buyer would pay for the business and a willing seller would accept for the business when both parties have knowledge of the value of the business and neither is under duress to enter into the transaction. The value of a business is the value of the company’s assets plus the value of its goodwill. Enterprise goodwill is the value of a business that exceeds its assets. It constitutes the tendency of patrons to return to a business irrespective of the presence of its owner. Professional goodwill of a doctor, lawyer or business owner is distinct from enterprise goodwill. It is based on the skill and continued participation of the owner in a business. Although, enterprise goodwill is considered to be a marital asset in divorce proceedings, a doctor, lawyer or business owner’s personal or professional goodwill is not considered to be a marital asset.
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