Division of Property and what is “Marital Property”?

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In a Florida divorce, only “marital property” is subject to equitable division.  Simply put, marital property is property acquired during the marriage from the effort of one or both spouses.  It does not matter which spouse earned the money, nor the name is on the title.  Keep in mind, however, this is only for division of property and debts.  A court can award non-marital property to the other spouse in rare circumstances if the facts allow for it.

Marital property is not inheritance or a gift received by one spouse, as this is not earned from the effort of one or both spouses.  This is usually from that spouses’ parent or other relative.  However, a joint gift would be subject to equitable distribution in a divorce.

Also, if something is owned prior to the marriage it is usually considered non-marital, and thus, not subject to equitable division.  However, it can become marital if the owner spouse adds the other spouses name or it is “comingled” by adding a marital asset to it.  This could happen, for instance, if you put your inheritance into a joint checking account.

Florida divorce law also uses “Equitable division”.  For the most part this is “equal division”, but not exactly.

There are exceptions to equally dividing marital property.  For the most part, a Husband and Wife will equally divide all of their marital assets.  This even includes individually titled assets like retirement, cars, or even real estate.

However, we don’t simply liquidate everything in a divorce then divide it down the middle.  If the parties own a house worth $250,000.00 with a $100,000 mortgage and the Wife has an IRA worth $150,000.00, the court can award the house to the Husband with responsibility for the debt thereon, and let the Wife keep her whole pension.  Not every case is this clean, so a partial transfer of an asset can allow a similar outcome in your divorce..

Also keep in mind that debts are divided the same way.  One scenario I often see is when one spouse owns real estate prior to the marriage and keeps it in their own name.  If the parties stay married a long time, and pay down the note against the house (i.e. the mortgage) this can create an issue.  Usually, the spouse who is not on the deed will not gain any interest in the real estate unless there were substantial improvements to the house.  But, that spouse may have an interest in the amount the mortgage was reduced during the marriage.  This is a way that the other spouse can gain an “asset”.

How to give an asset a value can also present issues in a divorce.  Certain assets, like a business, are hard to value.  These are not limited to how much the inventory, vehicles, and buildings are worth, but other value the business may have.  Business may have value beyond the real, countable assets it owns.  Debt owned by the business can also reduce its value.

Few assets stay the same value during a marriage.  The date used to value assets or debts is one of several potential dates.  One is when the Divorce is filed with the clerk.   Another is the date the parties stop living together.   The Court can also use a date that it finds to be equitable or “fair”, given the unique circumstances surrounding the divorce.

Property division is the most common issue in a divorce.  It is often more predictable than other issues like time sharing or alimony.  It can be simple if there are few assets, or complicated if a married couple owns significant property.  You should consult with an attorney even if the parties are in agreement.  An attorney will know the proper way to divide assets and debts to best protect a spouses interest.  This is especially true in cases with real estate, retirement or other significant assets.

Jurisdiction and Venue: Where do I file my divorce or paternity case?

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What is jurisdiction?  There are 2 main kinds of jurisdiction.  Personal Jurisdiction and Subject Matter Jurisdiction.

In layman’s terms, Personal Jurisdiction is the right of the state to make rulings over a party, specifically, the Respondent (or Defendant).  In order for that to happen, the Respondent must have a connection to the state in which the case is filed.  Usually, this means that the Respondent lives in that state.  However, in a divorce in Florida, this can be established by showing that the Respondent lived there during the marriage, even if they have moved out of state after separation.  It can also be found with a few more rare exceptions.  One way to obtain it is a little trickier.  It is by serving the Respondent while they are in Florida, even on vacation.  Personal Jurisdiction, unlike Subject Matter Jurisdiction below, can be consented to.  This can be tricky, as many Respondents may accidentally consent to jurisdiction if they do not follow the proper procedure.  An experienced divorce attorney should know this and property enter their appearance and file the correct motion to avoid this.  Respondents often consent, however, with knowledge in an uncontested divorce.

Subject Matter Jurisdiction is the ability of the Court to hear the matter itself.  In a divorce in Florida, it means has one of the parties resided in Florida for at least six months.  In a Paternity Case, it means have the children resided in Florida for at least six months.  However, in a divorce with children, you could, potentially, have jurisdiction to hear the divorce yet not have jurisdiction to rule on child related issues like time sharing if the children have not resided in Florida for six months.  This cannot be consented to, even if the divorce is amicable.

Finally, Venue is which county in Florida to file the divorce or paternity action.  In a divorce, it is where the parties last resided together or where the Respondent resides.  The Petitioner does not just get to choose.  However, Venue, like Personal Jurisdiction, can be agreed upon by the parties.  This is often the case with Uncontested Divorces.  I often file these in Osceola County even if both parties live in south Orange County when they agree it would be more convenient.  The rules are, ironically, a little looser in Paternity cases.

If you have any questions about where to file a Family Law case, be it a divorce or paternity case, you should contact an experienced, knowledgeable divorce attorney.