How are Assets Divided in a Divorce?
Well, this is a complicated area of the law, and I’ll do the best I can to summarize in this video to at least give you an idea of the general principles. Generally, under Florida Law, the courts will look at any and all assets that were acquired during the marriage and take those assets and divide them between the spouses in equal parts to the extent humanly possible.
So that means that if there is a bank account that contains 10 thousand dollars, that was acquired during the marriage, the court would normally divide those assets in equal parts giving each spouse 5 thousand dollars.
Similarly, in those cases where the assets are a little harder to divide, such as land, what the court would do is order the sale of the property and divide the net proceeds of the sale between the spouses.
There are 3 basic exceptions. Exception number one: one of the spouses acquires an asset through an inheritance. Then that’s considered to be non-marital. Exception number two: one of the spouses acquires an asset through a gift that he or she receives as an individual. Exception number three is: any and all assets that were acquired prior to the marriage.
Keep in mind that we are talking about the law and there are exceptions to the exceptions. And here is a big exception to the exception. And that is: any assets that’s otherwise considered to be non-marital, is ever commingled with any marital assets, then it may lose its non-marital status and become subject to a distribution in equal parts in the event of a divorce.
Let’s suppose that you receive an inheritance of fifty thousand dollars. You then deposit these funds into a separate bank account under your name only. We are doing good so far. However, during the marriage, you commingled marital assets in with that bank account. Well, by doing that, you may have “contaminated” the non-marital asset with marital assets, making the whole thing subject to equitable distribution in a divorce proceeding. So, basically, even if you deposit some money that’s marital into a non-marital account you may have now made the entire account marital and subject to a divorce proceeding.
Similarly, if you have some type of real estate or some land or other property, and you transferred title from your name only to you and your spouse, that’s essentially commingling the non-marital asset with the marriage, making the whole thing marital.
If you find yourself in this situation it’s important to consult with a knowledgeable attorney who can review the circumstances of your case and figure out whether we can still salvage the situation perhaps through, for example, a postnuptial agreement.
Again, I hope this short video provided you at least some idea of how the laws work in this very complicated area of the law. Thank you again for joining me today. And, as always, stay informed so you can stay strong.
Hello and welcome to our show 60 Seconds with Sergio. I am your host, Sergio Cabanas, Attorney-at-Law here in Florida. Thank you for joining me today.
Today’s question is: “Sergio, how does the divorce process work in Florida?”
The best way of answering that question is by first examining the marriage relationship itself from a legal perspective.
I understand. A lot of people view marriage from an emotional, psychological, or even a religious perspective where two individuals commit to having a relationship forever. However, we cannot overlook the fact that the marriage creates a legal relationship, often considered to be a legal contract, that gives individuals rights regarding the other spouse that others that are outside the marriage do not share.
These rights can include, for example, ownership rights over assets that are acquired during the marriage. Also, decision-making authority over the other’s medical care under certain circumstances. There are other laws that apply that would give the spouses tax benefits that others do not share. These rights can also include the right to inherit assets belonging to the other spouse and the list goes on.
The only way to terminate this legal relationship, this legal contract, is by going through a divorce process in a court of law. Which is known officially as the “Dissolution of Marriage”.
This process officially begins with the filing of a petition with a local county court here in Florida requesting the termination of the marriage through a final judgment that only a judge can sign off on.
In summary, the process will also involve the exchange of financial information between the spouses. Each spouse will complete a financial form providing basic financial information. Such as their respective incomes, assets, expenses, debts, etcetera.
As we review the finances, we determine which assets are marital, which will then be subject to division between the spouses in a divorce; and those assets that’ll be considered non-marital, which are assets that will remain separate.
Finally, we will review any other issues that may be applicable in your case. Such as the spouses’ eligibility for alimony, or the recovery of attorney’s fees, depending on the circumstances of the case.
Hopefully, the parties will be able to reach some type of settlement agreement, either by directly negotiating with one another or going through a mediation.
In a mediation, the parties will actually sit down with an independent third party known as a mediator, who can then review the specifics of the case and try to reach an agreement.
If an agreement is reached through these negotiation efforts, then we will document everything carefully in a ‘Marital Settlement Agreement’. Which will be presented to the judge and the judge will then enter a final judgment based on that agreement. That would finalize your divorce once and for all.
Most cases are actually resolved in this way.
On the other hand, if the parties are not able to reach an agreement, then we would have to go to a trial where the judge will make the decision relating to all of the issues I just discussed.
The judge will then enter a final judgment that would finalize the divorce based on his or her findings.
I hope this short video provided you with at least some guidance regarding the legal divorce process here in Florida.
Thank you again for joining me today. And as always, stay informed so you can stay strong.
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