Jacksonville Marital Property Division Attorneys.

Assuring a Fair and Equitable Distribution of Marital Property

Marital Property Division in Florida.

In a divorce, parties can’t always agree on how to distribute their property without seeking resolution from the court. This is recommended because the parties know more about their property than an impartial judge would. Property Agreements are generally binding and specifically enforceable and cannot be modified by court. If the agreement, considered as a whole, plainly shows the parties intended it to be a final settlement of rights and obligations concerning property of any kind, the agreement is a property settlement.

If a court gets involved in the property distribution in dissolution, the court will attempt to place parties in their pre-marriage condition. Property distribution is more commonly called equitable distribution. A court is authorized to effectuate an equitable distribution of all property, real or personal, acquired by either spouse during the marriage from a source connected with the marriage. Although equitable distribution does not always mean a 50/50 division of property, distribution must be equal unless justification for unequal treatment is shown. Assets and liabilities acquired during the marriage are presumed to be marital. This presumption may be overcome. Also, retirement funds that accrue during the marriage are considered marital assets and are subject to equitable distribution. A court will consider certain factors when making an equitable distribution.

Factors the court will consider in property distribution:

• Contribution to the marriage.
• Economic circumstances.
• Duration of marriage.
• Interruption of personal careers.
• Desirability of retaining any asset.
• Misconduct that depleted martial assets.
• Other factors necessary to do equity and justice between the parties.

The court may provide for equitable distribution of marital assets and liabilities without regard to alimony for either spouse. After a determination of equitable distribution, the court must consider whether a judgment for alimony is to be made. A money payment to one spouse may be ordered by the court in lieu of or to supplement equitable distribution.

Occasionally, during the pendency of a dissolution action, the court may enter an interim order providing for a partial distribution of marital assets and liabilities upon a finding of good cause. Credit for any partial distribution is given in the final allocation of marital assets or liabilities. The court must also make a specific finding that the partial distribution will not cause inequity or prejudice to either party as to claims for support or attorneys fees.

The court will first separate marital assets and liabilities from the non-marital assets and liabilities, and set apart the latter to their respective owners.

Marital assets and liabilities include:

• Those acquired or incurred by either or both of the spouses.
• Enhancement of.
• Appreciation in.
• Value of non-marital assets as a result of the efforts of either spouse during the marriage from the contribution to or expenditure of marital funds or other marital assets.
• Inter spousal gifts during the marriage.
• All vested and non-vested benefits or funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
• Real and personal property held as tenants by the entirety, whether acquired prior to or during the marriage is presumed to be a martial asset.
• When marital funds are used to make mortgage payments on non marital property, the value of the passive appreciation of the non-marital property that accrues during the marriage is marital property and is subject to equitable distribution.

Non-martial assets and liabilities include:

• Those acquired or incurred by either spouse prior to the marriage.
• Assets acquired and liabilities incurred in exchange for such liabilities.
• Assets acquired by either spouse by non inter spousal.
• Gift, bequest, devise, or descent, and assets acquired in exchange for such assets.
• Income derived from non-marital assets during the marriage, unless income was used or relied on by the parties as a martial asset.
• Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties.
• Assets acquired and liabilities incurred in exchange for such assets.
• liabilities, and any liability incurred by forgery or the unauthorized signature of one spouse signing the name of the other spouse.

The date used for determining marital assets and value is the earliest date of the date that the parties enter into a valid separation agreement, the date specifically provided by a valid separation agreement, the date of filing of a petition for dissolution of marriage, or such other date that the court determines is just and equitable under the circumstances. The date for determining the value of the assets and the amount of liabilities is whatever the judge determines is equitable under the circumstances. Different dates may be used for different assets.

Property distribution is not considered a taxable event. Thus payments made as part of a property settlement are not income to the recipient spouse, and may not be used as a deduction by the payer spouse.

Trust the family law attorneys of McGRATH GIBSON for the answers, representation, and results you need in these most important personal legal matters. Call us to schedule a consultation at (904) 358-3300, or use our contact form below and we’ll get back to you as quickly as possible.

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