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Estate Planning After Divorce: What Changes?

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When people prepare for divorce, they start to plan their post-divorce life. They may do things like get their spouse’s names off of bank accounts, figure out where they will live, take names off of insurance policies, and all the other things that go with the transition from married to single life.

But one thing that many soon-to-be-divorced people do not take time to think about is estate planning.

If you are someone who has thought ahead and has an estate plan already, that is good news. However, the estate plan you drafted when you were married (or, for that matter, even before you were married) may not work for you once you are divorced.

In fact, your estate documents may be completely invalid post-divorce.

Conflicts Between Family Law Documents and Estate Plan Documents

If you have an estate plan already, any agreement that you make in relation to your divorce, such as a  mediation agreement, marital settlement agreement, or anypre or post-nuptial that you sign, will take precedence over your estate documents in the event that there is a conflict.

This often happens—people will draft an estate plan and later agree to a divorce settlement agreement, not aware that they are conflicting with the prior drafted estate plan.

This can lead to people not getting what you intended them to get in your estate plan, or worse, to fighting between family and former spouses in probate court. Your estate could be tied up for years.

This means that if you already have an estate plan, it must be revised post-divorce to eliminate any conflict with any document you sign in relation to the divorce.

Amending or Redoing Your Will

With all the changes that come with divorce, you may be best served just revoking your will and drafting an entirely new one. That is because of all the changes that need to be made in your will post-divorce.

For example, your will may have appointed your spouse as the executor of your will. You may no longer want this to be the case after your divorce.

For the purposes of a will, upon divorce, the law treats the spouse as having died (again, this is for the purpose of administering your estate plan). That means that whatever funds, money, or assets you left to your spouse now have nowhere to go and could be distributed by the Probate Court per Florida’s intestate statutes.

Healthcare Proxies and Medical Decision Making

Many wills and other estate documents appoint healthcare proxies — that is, people who will make the essential medical decisions for you in the event you are temporarily or permanently incapacitated or if you can no longer make these kinds of informed healthcare decisions for yourself.

You likely may have appointed your spouse to be this person, and you may no longer want this to be the case in a divorce.

If you had no designated healthcare surrogate, healthcare proxy, or power of attorney, you can no longer just rely on a hospital or doctor just listening to your husband or wife. Now that you will be single, you should have these documents executed to designate whomever it is you want to fill this role.

If you have a living will that designates your end-of-life care (such as a do not resuscitate order), some living wills and the authority for your designated spouse to help carry out your wishes will terminate once the dissolution of marriage is entered. That means that although you indicated your wishes for end-of-life care, there is nobody with the legal capacity to make those wishes happen for you if you do not amend these estate documents.

Powers of Attorney

Per Florida law, any kind of power of attorney (not just one that addresses healthcare) terminates on the filing of the divorce itself. That can be good, as you may no longer want your spouse to be your power of attorney. But it does mean that you will need to replace your spouse with whomever it is you want to take that role.

Death Before Divorce

Divorce cases can be very contested and can drag on for a long time. What if something were to happen to you before a final judgment was entered? Technically, you are not divorced yet, and Florida law has powerful laws that make it difficult to disinherit a spouse, even one you are in the process of divorcing.

Your estate plan should have contingencies in case something were to happen to you before the divorce is finalized.

Other Documents

Your estate plan is more than wills and trusts. It also may include deeds to properties, bank accounts that you designated as “payable on death,” or life insurance policies with named beneficiaries. Your soon-to-be ex-spouse may stand to benefit from any of these, and you may no longer want that to be the case. These all need to be altered to reflect your life post-divorce.

Trusts

Did you set up a trust during your estate plan? Florida law says that if you did establish a revocable trust, there will be little impact on the trust itself; the law acts as if your spouse “died” upon divorce for the purpose of the spouse, thus eliminating him or her as a beneficiary, even if they are named.

But if your spouse is “deceased” (for the purpose of the trust), what happens to his or her trust distribution? It may go to someone you don’t want those assets going to, such as one of your spouse’s relatives.

And if you do want your soon-to-be ex-spouse to continue to inherit through the trust, your marital settlement agreement or court order needs to say that.

Minors and the Disabled

Does your will or trust leave something to a minor child? Or an adult child who may be disabled and not able to properly care for or use the assets or money you have left to him or her?

It used to be that you could rely on your spouse to safeguard the funds or to help manage them for the benefit of the minor or disabled child. But now, with no spouse, you may want to re-establish a trust, and name a trustee, to help manage the funds until the child is older or to distribute the funds in a way that ensures that what you are leaving to your child is not wasted or misused.

If something were to happen to you, your ex-husband or wife would be the legal guardian of the child, which makes sense, as they are the natural surviving parent. But sometimes, this is not possible. Perhaps a spouse is incarcerated or simply cannot handle full-time parenting because of time or other concerns.

Your estate plan will have to designate a guardian to care for minor children, which can serve as a backup plan in the event that your spouse cannot or does not want to take that role now or in the future.

Divorce is a big change in your life, but we can help you navigate it and answer whatever questions you may have.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

Prenuptial Agreements: What You Need to Know

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Many of us think we are familiar with what a prenuptial agreement is and what it does. But there are many misconceptions out there about prenuptial agreements. Here are some things that you may not know—and that you really should know—when it comes to prenuptial agreements.

You are Not Getting Divorced

Some people feel that if their soon-to-be spouse asks for a prenuptial, it must mean that they anticipate the marriage falling apart in the future. This is simply not true.

Think of a prenuptial agreement as security or insurance. It is peace of mind, not to mention an assurance that fighting will be minimal should a divorce happen. You may also find that the things you want to protect in a prenuptial agreement are not major concerns for your spouse after all. For example, if you want to make sure your share of your mom’s family business never goes to your husband in a divorce, you may find that he is perfectly OK with that.

Disclosing Everything

If you do want a prenuptial agreement, you will have to make a full disclosure of your assets. Many people skip this step, assuming that their soon-to-be spouse “knows all about my finances anyway.” But that is not good enough. A full disclosure, on paper, with supporting documents is necessary.

Disclosing all assets means all assets. That includes cryptocurrency, interests in businesses, dividends from stocks, or perks from work. It can also include contingent assets that have not been received yet, such as anticipated bonuses from work or inheritances from ill relatives you anticipate receiving.

Remember that one big way that people try to get out of prenuptial agreements after they are signed is by saying that money, property, or assets were concealed from them when the prenuptial was signed. Do not risk having a problem later on. Your marital and family attorney can help you draft the forms and affidavits and help you compile the documents that you need to make full disclosure to your soon-to-be spouse.

No Stress or Coercion

One other way that people who sign prenuptial agreements try to get out of them later is by saying that they were pressured or coerced. One way this happens is by forcing a spouse to sign a prenuptial agreement too close to the marriage date.

Both spouses should have enough time to read, consider and negotiate a prenuptial agreement. Drafting an agreement five days before your wedding day will open the door to a spouse one day saying, “I signed it because it was so close to the marriage that I couldn’t say no.”

Do not ever discourage your spouse from getting legal representation. Saying things like, “Why do you need an attorney to review the prenuptial; why don’t you trust me?” is classic coercion—never do anything to discourage the other side from having a proposed prenuptial from being reviewed by an attorney. That includes giving someone a proposed prenuptial so close to the marriage date that there is no time to have an attorney review and negotiate it.

It should go without saying–never threaten your spouse, in any way, as a way to entice him or her to sign an agreement.

Do Not Forget Debts

Everybody wants to agree on who gets what in a prenuptial agreement. But what about debts?

Often a spouse will marry another spouse who is in debt or who anticipates borrowing money during the marriage, and the non-borrowing spouse wants to make sure that they are never liable for that debt. Any debt that you may acquire, either jointly in both your names or individually, should be referenced in your prenuptial agreement.

Do not forget about how any debts will be divided, keeping in mind that in some cases, you may have joint accounts, and you may be unable to remove a spouse’s name from that debt, even after your divorce.

 Children, Custody, and Support

As a general rule, you cannot agree on issues regarding the kids in prenuptial agreements. In other words, you could not agree on who will get custody or who will have visitation. That is not to say that you cannot agree to those things later as part of a negotiated settlement of your divorce. It just means that you could not say that mom will have the kids 60% of the time in a prenuptial, and years later, upon a divorce, assume that this provision will be legally binding.

The same goes for child support. Child support will be determined by the courts at the time of the divorce. An agreement before the marriage to pay a certain dollar figure will usually not be legally enforceable.

Death Before Divorce

Your prenuptial agreement may or may not apply if a spouse dies. Do not assume that the death of a spouse (during the marriage) will automatically trigger the division of property that you contemplated in your prenuptial agreement.

If your prenuptial agreement conflicts with either your or your spouse’s estate planning documents (like a will or trust), there is a good chance that the prenuptial agreement will govern. Of course, that issue will ultimately be decided by the probate judge, but it is a good reason to have your prenup expertly crafted by an experienced attorney.

Sentimental Value

Do not forget the items that have value to you but do not have actual significant financial value. You may have collections, family heirlooms, or items of sentimental value, like items that your kids make for you, all of which you can include in your prenuptial agreement.

That includes pets, which are treated like property by New Jersey courts. But you can, in a prenup, agree in advance that your dog will remain your dog, even should the marriage not work out.

It is never too early to start planning for the future. A prenuptial agreement is there to keep both you and your soon-to-be spouse safe. Ask us about how we can help.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

Asset Protection: Strategies for Divorce

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One thing that many people, understandably, worry about when they are getting ready to go through a divorce is protecting their assets. While not all assets are divided or split in a divorce, some certainly may be, and that leads people to wonder what strategies they can use pre-divorce, to protect as many assets as they can from being divided.

Asset Protection in Divorce is Different

Remember that asset protection, in the context of a divorce, is different than traditional asset protection that you may do to protect your property from creditors.

The laws that make certain property “exempt” from collections do not necessarily apply to a divorce (at least, not to spousal support obligation); the law may let you shield property from Chase Bank, but it does not want you to hide property from your spouse.

The other thing to remember is that when we talk about asset protection, we are talking about property—not income. In other words, it is one thing to use a strategy to try to ensure that property, like a business, a car, or a boat, is not divided. But that does not mean that your income will be hidden or lowered, income that is often used to determine things like alimony and child support.

Starting Early?

Many asset protection strategies, when planning for divorce, have an inherent contradiction to them. To be effective, many of them need to be established or set up early—long before you file for a divorce. Of course, too long before a divorce, and you may not even be thinking about a divorce, and thus, it may not even dawn on you to start to implement these strategies.

Separating Assets and Property

One strategy is to keep your separate property separate from marital funds, paying marital bills, or buying things for the marriage. If there is truly money you want to protect from division upon divorce, it should be kept in a separate bank account and not used for things that benefit both spouses jointly. This is called “commingling,” and it can turn property or money that is yours and yours alone into property that a divorce court can divide in a divorce.

Using Pre and Post Nuptials

Another strategy is to have a prenuptial or postnuptial. While effective, these two things do have inherent practical problems: If you have not already drafted a prenuptial agreement and you are married, it is too late. You can still do a postnuptial agreement, but that, of course, may signal that you are considering divorcing your spouse.

Protecting Businesses

Smaller businesses may benefit from getting a business valuation. The valuation will give an estimate of what the business is worth.

This can be beneficial because some spouses have an inflated idea of the worth and value of a business. If the valuation comes back with a low value, or even a negative value (some businesses simply are not worth money), it can be a helpful tool for you to negotiate keeping the family business.

Using Trusts

In some situations, putting assets in a trust could be helpful to you. This is usually done with trusts that are irrevocable.

Domestic Asset Protection Trusts and other offshore accounts can be helpful and effective. Offshore accounts are not necessarily automatically shielded from division in a divorce, but they that are hard for spouses to find and difficult for attorneys to collect against if a judgment is entered.

However, with many of these trusts, you do not have ready access to the funds and property put there, so you should be careful about putting money there that you need to access to pay regular, daily expenses.

Tradeoffs of Assets and Debts

One way that you can protect a particular asset that you absolutely cannot bear to part with in a divorce is to make a tradeoff.

For example, if your spouse’s interest in the marital boat is $30,000, and you really want to keep the boat, you could opt to just buy out your spouse for that amount or increase payments to your spouse to pay off that amount over time. You could even “trade” assets—for example, give your spouse 100% of Asset A, and you keep 100% of Asset B.

You can even agree to take on marital debt or your spouse’s debt that normally would be divided in return for keeping certain property. So, if you agreed that you will be responsible for $10,000 worth of debt that would normally be the obligation of your spouse post-divorce, you could then ask to keep an additional $10,000 worth of property to balance that out.

Support and Assets: Be Clear

Some payments and providing of assets to a spouse in a divorce are considered spousal support.

If you agree that your wife will get 50% of a vacation home to aid in her support, then that asset is treated like alimony or child support would. This kind of support gets special treatment in the law; it is almost impossible to wipe out in bankruptcy, and traditional collection protections (exemptions) will not help you avoid paying it. You could even be held in contempt of court for not paying.

If you make sure that division of assets and property is just that—the division of property—and not part of your support to your wife, then financial obligations could, later on, be discharged in bankruptcy if needed. And, those payments would not get the same protections as support would. You would be able to use traditional collection protections as a defense against any collection action.

Negotiating and Settling Can Help

Note that these “give and take” arrangements, such as trades and payoffs over time, are really only possible through negotiation and a settlement reached by the parties inside or outside of mediation. A judge in your family law trial will usually not work out these kinds of arrangements, making an amicable settlement beneficial to you, if you are seeking to keep certain property in your divorce.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

How Does the Court Determine Child Custody?

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If you are getting divorced and there are children of the marriage, you may worry that you will lose custody of your children. Both parents, understandably, often want to keep and foster a meaningful relationship with the children after the divorce is finalized and may worry about how they will prove to a court that the children of the marriage should remain with them.

Compound this very real concern after seeing the custody battles that are shown on TV and in the movies, and it is no wonder that divorcing parents become so fearful over a protracted custody battle.

What is Custody Anyway?

The first thing to remember about child custody is what it actually means and the difference between custody and timesharing or visitation.

Unless you are completely unfit and have your parental rights terminated by a judge, you always have custody of your child, regardless of where the child is located. In other words, even on the nights when the child is with mom, dad still has “custody” of the child, in the sense that he can make the core, basic decisions about raising the child that any parent has.

As a general rule, unless a parent presents some danger or is completely unfit, both parents will have shared joint custody of the child regardless of how many nights the child spends with one parent or the other.

Time-sharing

‘Visitation’ is an old term that is not used as much anymore by the law or by courts. Today, courts use the term ‘time-sharing,’ representing how many nights the child will spend with one or another parent over the course of a week or month.

Parents can have equal time-sharing on a 50-50 basis, or one parent can have more nights per week or month than the other, in which case that parent would have the majority of parenting time.

Time-sharing is where most of the arguments in child custody cases arise; both parents often want as many nights with the children as possible and will often argue, alleging that it is in the children’s best interests to spend the majority of overnights with one parent or the other.

Factors to Determine Time-sharing

So, how does a judge determine how many nights in a given week a child will spend with one parent over another?

The test is simple; the court looks to the best interests of the child to see whether those interests are best served by the child having the majority of overnights with mom, dad, or shared equally between both.

Note that the court is not trying to find that one parent is “bad” or “harmful”; in many cases, both parents are able and fit, but the circumstances, lifestyle, or another component of one parent’s life just make it in the child’s best interest to spend more overnights with that parent.

For example, one parent may live closer to the child’s friends, may have a larger familial support system, may live in a home that has more room for the child, or may work a job that allows them to spend more time with the child. The other parent is not harmful or unfit at all—it is just that one parent’s life is set up in a way that is better for the child.

Defining the Best Interests of the Child

Still, the “best interests of the child” can admittedly be vague, so the law has set up some guidelines that judges use to see what is in the best interest of the child.

Cooperating and Keeping the Peace

One major factor is which parent is simply more cooperative—in plain terms, which parent is less argumentative, more likely to foster a meaningful relationship with the other parent, or more likely to meet the other parent’s requests for last-minute changes. In plain terms—can you get along with the other parent and cooperate with them?

This punishes parents who argue, fight, or harbor hostility toward the other parent—or worse, who may use the child as a pawn to get back at the other parent, or who may put the child in the middle of arguments between parents.

How Much Time Do You Have?

Courts will also look at your time. There is nothing inherently wrong with using babysitters or other caretakers. We all know that parents, especially single parents, may need to work long hours.

But the parent who seems like they will have the most time to dedicate to the child when the child is with that parent will have some advantage in a custody or time-sharing dispute.

Continuity

The continuity of the child’s lifestyle is an important factor, as well. Courts do not want to uproot a child from their school, family, friends, or extracurricular activities. A parent whose lifestyle is one that seems like it will facilitate that continuity will have an advantage in child custody cases.

Morals and Ethics

The moral fitness of parents will be looked at, as well. Certainly, a parent who does a little gambling, who may drink socially, or who has a casual intimate relationship should not have their fitness as a parent questioned.

But there are circumstances where one parent’s lifestyle brings their ability to parent into question. Worse is a parent that exposes the child to that behavior.

For example, a court probably would not punish a parent who smoked marijuana. But a parent who did it in front of the child, or who left marijuana paraphernalia where the child can find it, or who was under the influence of marijuana at the child’s sporting event may have their parental decision-making questioned in a custody case.

Involvement Level

A parent’s level of involvement in their child’s life is a big factor in determining custody.

In a typical child custody case, a parent may be questioned about how much that parent knows about the child’s life. The court will favor parents who are involved enough in the child’s life that they understand what the child likes and does not like, who their friends are, what their favorite school subject is, who their favorite athletes are, etc.

Any Other Factor

Judges actually have the power to look at almost any factor when determining what is in the best interests of a child. So long as you can explain why something is relevant to custody or parental time-sharing, if the judge agrees, they are allowed to take it into consideration.

We can help you understand how to get an advantage in your child custody case and answer your questions about your relationship with your child after your divorce.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

What is the Difference Between Alimony and Child Support?

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When couples are getting ready to divorce, their mind often turns to financial concerns—specifically, how much they will have to pay to the other spouse or how much they can expect to receive from the other spouse. They often just lump what they might have to pay, or what they are paying, into one giant payment in their minds. But in reality, there are two distinct areas where someone may be obligated to pay money to the other spouse on an ongoing, periodic basis — alimony and child support.

There are differences in the intent and purpose of both of these items, as well as different factors that determine how much the payor spouse (the spouse paying the money) will pay.

The Purpose and Logic of Child Support

As the name implies, child support is money that one spouse pays to the other to pay for the living expenses necessary to care for and raise the child. The logic is that if the parents were still together, both would share the child’s daily living expenses, so that should not change just because the parties are divorcing or separating. One parent should not have a child with the other and then be able to walk away from the marriage, leaving the other to pay 100% of the child’s expenses.

It can be hard for many payor (the party paying the money) parent to reconcile that even though the child support money is for the child, the money is paid to the other parent. Additionally, as a general rule, there is no legal requirement on how child support money is used. Nobody is monitoring the funds to make sure they only go toward the child’s expenses.

The law just assumes that whatever the actual money is used for, the additional income will eventually benefit the child. This can create anger and frustration with parents paying child support, who may feel that their money is not being used for the child.

Who Pays What?

As a general rule, the parent who has the child the fewer nights will often be the parent paying child support, although income also counts as well–the more income, the more support will be paid.

However, it is possible for parents to share time-sharing 50%-50%, and while this does not eliminate the necessity to pay child support, an evenly divided time-sharing schedule can reduce the child support obligation that the payor parent must pay.

Florida has child support guidelines. That means that in most cases, you will plug in your income figures, and with a few additions and deductions that are allowed under the child support guidelines, you will have a child support figure. It is just math based on a statutory formula.

The biggest argument in child support often comes with what number goes into the formula; parents will often argue that the other parent is hiding income or artificially lowering income just to get a smaller dollar figure to put into the formula and thus, a smaller child support obligation.

Child support ends when the child turns 18 or enters college—however, special circumstances like a disability may extend child support. Additionally, unlike alimony, the court can order that child support be deducted automatically from the paying spouse’s paycheck through an income deduction order.

Alimony

Alimony is different from child support in that alimony is awarded for the benefit of the payee (receiving) spouse. The purpose of alimony is to keep a spouse in about the same lifestyle that he or she had during the marriage; it is not fair for a spouse to contribute to the marriage for many years, give up personal financial or professional opportunities, and then be left destitute after a divorce because the other spouse was the money earner in the marriage.

Unlike child support, there is no mathematical formula and no grid of numbers that tell anybody how much alimony is or will be. This means that a court has much discretion in awarding alimony and that every case may be different based on the facts. This is another area where mediation may be helpful, as you can mitigate the risk of a large alimony award being given by a judge.

Alimony Factors

Alimony is based on the need and ability to pay; the receiving spouse must show the financial need, and the paying spouse must have the ability to pay the alimony (even if it is just a small amount of alimony). Additionally, the length of the marriage will be considered. Shorter-term marriages often result in no alimony award at all, or smaller payments for shorter time periods, whereas with longer marriages, there is often a presumption that some form of alimony must be paid.

To see if alimony should be awarded and how much, the court will look at things like the standard of living of the couple during the marriage, the financial resources both spouses will have once the marriage is over, and the contributions to the marriage that a spouse made, such as raising kids helping a family business grow, taking care of the home, or other sacrifices made by one spouse, for the success of the marriage and family.

Types of Alimony

Alimony is much more flexible than child support. There are many different kinds of alimony. Some include:

  • Bridge-the-Gap – this is temporary, short-term alimony, just to help a spouse get “over the hump” of going from married to single life. This alimony can only last for two years
  • Rehabilitative – this is where a spouse can become financially self-sufficient but may need time and resources to do that. The spouse may need to wait to get job training or wait until a child gets old enough that the parent can go to work, or the spouse may need to get a degree. During that time, the paying spouse will pay rehabilitative alimony.
  • Durational – This is like rehabilitative alimony, but there is no rehabilitation plan; the alimony just lasts a specific period of time and then ceases. This support can last for no more than the number of years that the marriage lasted.
  • Permanent – Permanent alimony is usually reserved for very long marriages and situations where the receiving spouse has no reasonable expectation of being able to support him or herself. For example, a spouse may be too old to be retrained or may be ill or disabled. The receiving spouse may not ever be able to work because they need to take care of a special needs child.

Of course, you have much more control over what you pay and can try to craft a payment agreement that works better for you and your own situation by resolving the case on your own. The best way to ensure that your child support or alimony obligations, if they are necessary, are fair and reasonable is to try to come to some kind of agreement outside of court through mediation or settlement.

We can help you understand the financial aspects and obligations that you may face in your divorce and get you the best result possible.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

How to Divide Assets Fairly Through a Divorce Attorney

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There is a common misconception that in a divorce, you will lose half of everything you own to your soon-to-be ex-spouse. People even joke that your spouse will take half, or everything you own will just be divided in two. But this is not exactly how the division of property works in Florida.

What Property Can Be Divided?

Before any discussion or analysis of how property in a divorce is divided, the first step is to establish what property is subject to being divided at all. In Florida, in a divorce, there are two kinds of property: marital property, which is subject to division on and in divorce, and non-marital property, which the divorce court cannot touch, divide, or affect.

Of course, it is hard during a marriage to determine what property is the property of only one spouse; in a marriage, most couples don’t divvy up and segregate their property. Rather, they put their property together, share property and assets, and jointly use property and assets.

As a general rule, non-marital property assets or income is anything that is:

  • Owned by a party from before the marriage, and which is not later commingled, or mixed with marital assets, or
  • Was received by a spouse as a gift from someone other than the other spouse, or
  • Inherited
  • Specifically listed in a prenuptial agreement as being non-marital
  • Derived from or generated from, any other non-marital property

Increases in Value

Sometimes, someone has separate, non-marital property, which increases in value during the course of a marriage.

For example, a husband owns a home before the marriage, and during the marriage, through the money, labor, and efforts of both spouses, the home is maintained, improved, and increases in value. The increase in value of the property would be marital property, while the original value of the home at the time the properties were married would remain non-marital and not subject to division by the divorce court.

Commingling and Mixing

Just because property is non-marital and thus protected from being divided by the divorce court does not mean that it stays that way. That is because of commingling. Often, in a marriage, the couple will intermix marital assets or will use the property for marital purposes. Doing this can convert otherwise non-marital property into marital property.

For example, let’s say that the wife has an inheritance that she solely receives, and she keeps it in a separate bank account in her name only. Later, the husband loses his job, and the couple must use some of the inheritance to keep paying the mortgage.

The inheritance—once solely the wife’s and, thus, non-marital property—has now, potentially, become marital property, given that it was used for a marital purpose: to keep and maintain the family home.

As you can imagine, there can be a lot of fighting between couples in divorce over what is or what is not marital property and whether non-marital property has been commingled such that it becomes marital. If the parties cannot agree at mediation or through settlement, the judge will make that decision.

Dividing Marital Property

Once it is established what property is marital and thus subject to division, the court will then have to determine how the property is divided. Contrary to the popular belief that property is just divided in half, in Florida, this is not the case (it is the case in some other states, but not under Florida law).

Florida law provides for equitable distribution. This means that the court will divide property in whatever way is deemed to be fair and equitable to the parties. Often, this is an equal, 50/50 distribution—but it doesn’t have to be.

The law allows the court to look at things like the contribution to the marriage of the spouses, the economic needs of the parties, or sacrifices made by a party during the marriage. The court can also consider whether a given asset would be more desirable to one spouse over the other.

For example, let’s assume that the husband has a successful business. The wife has never worked a day for the business, but she stayed home to take care of the young children. She has made a sacrifice in her personal income and in her personal career to help raise the kids so that the husband could be successful in the business. In this case, she would certainly have, at the least, equal half ownership of the business upon divorce.

The court can also consider the waste of marital assets within two years of the filing of the divorce. So, for example, if a spouse used marital funds to go on vacations, pay for an affair, or to buy frivolous items, the court can subtract that amount from the share of the marital property that the spouse would have otherwise received.

Actually Paying What is Owed

Some property is not easily divided. Not all property is liquid cash.

For example, if the husband and wife are both entitled to half of a million-dollar business, the business may not actually have $500,000 sitting in an account waiting to be distributed. The same is true for real estate—it may have a value, but that does not mean the value is sitting in a bank account ready for immediate payment.

The property or the business could be sold, but that would not be helpful to either spouse.

So, the court can “offset” what is owed to one spouse in equitable distribution, by giving the other spouse more of another asset. Additionally, parties can be ordered by a court to make payments, or additional alimony, to compensate the other spouse for his or her value in marital property that cannot easily be divided.

Questions about what will happen to your property in a Florida divorce?

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

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