Property Division and Asset Valuation
In Florida, the property is divided between the parties as part of the final resolution in a divorce case. The Florida courts divide the property according to the criteria contained in the equitable distribution statute. If the parties can agree to a division of assets this would generally be accepted by the court. However, if the parties cannot agree the court will decide the issue. The law offices of West Palm Beach divorce attorney, Jessica Mishali have over four decades of experience in representing clients concerning property division and asset valuation.
The court considers the following factors concerning an equitable distribution property award:
- The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homeowner;
- the economic circumstances of the parties;
- the duration of the marriage;
- any interruption of personal careers or educational opportunities of either party;
- the contribution of one spouse to the personal creator or educational opportunity of the other spouse;
- the desirability of retaining any asset, including an interest in the business, corporation, or professional practice, intact and free from any claim or interference by the other party;
- the contribution of each spouse to the acquisition, enhancement, and production of income with the improvement of, or the incurring of liabilities two, both the marital assets and the non-marital assets of the parties;
- the desire to reside in the marital home and it is in the best interest of the child or the party making the request; the intentional dissipation, waste, depletion or destruction of marital assets after the filing of the petition were within two years prior to filing the petition; and
- any other factors necessary to do equity and justice between the parties.
Florida defines property for purposes of a divorce as either marital or non-marital property, which is also called separate property. Marital property is defined as property acquired during the marriage or acquired prior to the marriage if paid for by both parties during the marriage. Non-marital property includes, but is not limited to property acquired prior to the marriage and property inherited by a spouse and property acquired after the filing of the petition for dissolution of marriage. If non-marital property is co-mingled with marital property it becomes marital. If property is determined to be non-marital property is retained and not distributed between the parties. Separate property also includes gifts and inheritance.Property ValuationParties are free to agree as to the value of a marital asset. When the spouses agree, courts will generally accept what the parties have agreed to as the value of the asset. Depending upon the type of asset, it may be necessary to retain forensic experts to determine the value of an asset. Various types of experts may include accountants, real estate or business appraisers or pension valuators.The Marital Home
In a divorce case, the marital is often one of the parties biggest assets to be divided by the court. Unfortunately, because of the recent economy the value of the marital home is often upside down, the parties owing more on the mortgage than the value of the home. If the parties cannot agree as to the value a real estate appraisal can be obtained. There are generally three options to divide the equity in the marital home:
- The home can be sold and the proceeds are divided.
- THe home can be refinanced and one party buys out the other party.
- The custodial parent has the right to stay in the marital home with exclusive use and possession until the youngest child attains the age of majority or graduates from high school. At that point one of the first two options can take place.
Pension and Retirement Benefits
Pursuant to Florida law the marital portion of pension and retirement benefits are deemed marital property. The pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person for which the pension is maintained is only an expectancy of interest in the pension. Valuation of retirement benefits is fact-intensive and varies depending upon the plan. In general, pension and retirement benefits are distributed like any other marital asset. It is within the court's discretion to choose the method of distribution. A tax-qualified pension can be distributed through a qualified domestic relations order (QDRO). An IRA is not subject to a QDRO.
Voluntary separation benefits and military retirement benefits are subject to equitable distribution. Disability benefits and involuntary separation benefits are not.
Business or Professional Practice
A business acquired during the marriage is marital property and should not be awarded solely to one party. Usually, the court will divide the value of the business or professional practice for equitable distribution purposes but not leave both parties running the business together. The valuation of business or professional practices is highly technical and often requires the retention of an expert.Contact a West Palm Beach divorce attorney
At the law offices of West Palm Beach divorce attorney, Jessica Mishali, we handle the full range of divorce and family law matters. We are dedicated to representing you with professional excellence. Please contact West Palm Beach divorce attorney Stephen J Press at (561) 833-2772 or contact us online for a free consultation.