Florida Family Lawyer Blog

Many of the clients of our Fort Lauderdale and Miami divorce attorneys are shocked to learn that their soon to be ex-spouse may be entitled to a portion of their retirement or pension fund. In Florida, pension and retirement funds that accrue during the marriage must be treated as marital property and are generally shared equally. However, there are exceptions and modifications to this rule that may help you protect all or part of your retirement savings.
Florida law holds that all vested and non-vested benefits, rights, and funds that accrue during the marriage are marital assets subject to equitable distribution during a divorce. This law applies to any 401(k), pension, Individual Retirement Account (IRA), annuity, or Deferred Retirement Option Program right (DROP) that is acquired or accrues during the course of the marriage. If the court determines a pension or retirement fund is a marital asset, they will issue a Qualified Domestic Relations Order (QDRO) that instructs the plan administrator to divide the fund according to the divorce decree. The non-employee spouse is usually entitled to the same rights under the plan as the employee spouse, such as cost-of-living adjustments and early withdrawal options, and is eligible to receive his or her share of the ex-spouse's benefits when the ex-spouse is entitled to receive them.

If a party has not contributed to their retirement account since the day they were married, the account will not be considered a marital asset. Likewise, contributions made to a retirement account both before the marriage occurred and after it dissolved are the separate property of the employee who made the contributions and are not considered marital property. When determining what portion, if any, of a retirement account is not a marital asset, the courts will consider the length of any marital separation and whether marital “efforts” or earnings were use to acquire the benefits. If a party argues that all or part of his or her retirement account should not be considered marital property, they will have the burden of proving when the retirement benefits accrued.

On the other hand, if a spouse is retired and dependent on a retirement account for income, the funds may be considered income instead of assets. In this situation, the retirement account will be considered in alimony and child support decisions, but will not be divided as marital property.

The divorce attorneys in our Fort Lauderdale and Miami offices can evaluate the complexities of Florida law and help you reach the best possible outcome in the division of your retirement or pension funds during your divorce. Please feel free to contact us for a free initial consultation.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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Many couples going through divorce find solace in playing the blame game—“I am getting a divorce because my spouse did this, that, and the other!” But just how far can that get you? In Florida, it probably won’t get you that far, and placing blame on your spouse, who is a party to your divorce proceeding, simply may not be relevant. That is because in cities like Fort Lauderdale, Florida, and in the state of Florida in general, divorces are based on a “no fault” premise. The Florida legislature, like in many states through the country, has essentially made the “fault” inquiry during a divorce proceeding obsolete because it allows either party to seek divorce without a showing of cause. In Florida, the magic words to plead in your petition for divorce are that the marriage is “irretrievably broken.” Pleading “my husband cheated on me (adultery)” will likely get you nowhere!

That being said, conduct such as adultery, which may in fact “cause” one party to initiate a divorce, can impact other determinations raised during the divorce proceeding itself. Easily stated, fault may not be grounds for divorce in Florida, but it may be relevant to other determinations the court may be forced to make. Specifically, in Florida, one party’s adultery may have significant implications for divorces that include child custody battles, equitable division of marital assets, and distribution of alimony. In our next blog entry (Part II), we will discuss how fault may affect the latter two categories. But for now, we will address how a party’s “fault” may impact child custody battles that increasingly occur during dissolution proceedings.

In child custody battles throughout Florida, before the court determines which parent should obtain custody of the child, the court must consider the “moral fitness” of a parent and what is in “the child’s best interests.” For this step, the court may consider both parent’s sexual conduct and whether the conduct had or is reasonably likely to have an adverse impact on the child. If adultery or marital misconduct is likely to have an negative effect on a child’s best interests, that court may take it into consideration when making its decision. Please notice the limitations of this standard, however. While the court is allowed to consider a party’s adultery or marital misconduct, such conduct will not necessarily establish that a parent is unfit to obtain custody. While other factors may be considered, and the determination of custody is within the sole discretion of the court, the scales may tip against an adulterer if adultery has a negative effect on the child. But even if the court determines that a parent’s adultery has had an adverse effect on the child, other factors, such as, cruelty, neglect and parental unfitness exhibited by the other parent may be present to tip scales back in favor of award of custody to the adulterous parent.

As Florida’s case law makes emphatically clear, what is in “the child’s best interests” is an extremely fact-sensitive inquiry. If the court does decide to base its decision to award child custody to one parent and not the other due to a party’s marital misconduct or adultery, that finding must be thoroughly explained on the record. If you are going through a divorce due to your spouse’s marital misconduct, and you believe that it has negatively affected your child, remember, the best advice would be to consult you divorce lawyer to discuss how to properly obtain custody. Please stay tuned for our next blog entry which will discuss how a spouse’s marital misconduct may affect the equitable distribution of assets and alimony awards.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Child Support , Equitable Distribution , No Fault Divorce

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As discussed in previous blog entries, Florida is an equitable distribution state. More specifically, the Court will divide the marital assets between the divorcing parties based upon all the facts of the case. The court begins its division analysis with a presumption that the marital assets and liabilities incurred by the parties during the marriage should be split equally, however surrounding facts and circumstances in a given divorce may alter the percentage each party receives. Assuming the marital assets are divided equally, another important issue to address is whether the definition of marital assets encompasses one spouse’s retirement accounts, IRAs, and 401k plans. The short answer is—it depends! How much of these accounts remains susceptible to equitable distribution in divorce depends largely on when they were created.

It is easy to see why division of martial property is one of the more challenging processes when going through divorce. In Florida, marital property includes any asset acquired during marriage by either spouse’s efforts. Additionally, Florida Statutes requires that a married couple’s vested and nonvested benefits, rights, and funds accrued during marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are all “marital assets” subject to equitable distribution. Therefore, all of a spouse’s retirement accounts, IRAs, and 401k plans are susceptible to equitable distribution even if they do not vest until after the parties separate. However, one important caveat stated within the Statutes itself, is that division of those assets will only result from a spouse’s employment time after the marriage but before the commencement of a dissolution proceeding (i.e., the duration of the marriage) because that is when the benefits accrue. For example, a pension plan balance prior to marriage and an increased value in the same plan subsequent to a dissolution proceeding cannot be subject to the equitable distribution of marital assets in the state of Florida. In this example, the pension owner would have the burden of establishing whether some portion of the pension benefits accrued prior to marriage.

How will the court determine the value of these accounts and what is the method of distribution? One Florida District Court of Appeal has explained that this determination generally requires complicated calculations in addition to expert testimony based on competent and substantial evidence. The preferable approach to such calculations includes reducing the fund’s present value by factoring in the contingencies of vesting, maturity, and the pension holder’s mortality. Once a final value is reached, it will then be equitably divided. In dividing a marital asset pension, however, courts have the following two options: (1) reduce the pension benefits to their present value (as previously discussed) and then order a lump sum distribution of the amount to the recipient spouse; or (2) direct that a portion of each pension payment be paid to the recipient spouse at the time of each payment. Because some pension plans may require an early withdrawal penalty, the second options appears to be more reasonable. However, some courts have chosen instead to apply the first option and simply reduce the pension holder’s interest in another piece of marital property and distribute that interest to the recipient spouse. Therefore, no early withdrawal penalties are implicated with either option.

If you are going through a divorce and have obtained many of these funds during the course of your employment, consult an attorney to consider your options.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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By now, many have heard a story that made national news just last month concerning a husband who while divorcing his wife demanded that she either return the kidney he donated to her or pay him $1.5 million dollars for its value. You can read more about the story here. In 1990, Dr. Richard Batista and his wife got married. In 2001, Dr. Batista donated his kidney to her. However, in 2005, Batista’s wife filed for divorce, and the proceeding is still ongoing. While Dr. Batista’s lawyer argues that her client wants the value of the kidney he donated to his wife, this issue raises a broader question concerning the division of marital assets and turns on whether a kidney should be classified as something other than marital property. Many divorce lawyers have stated that a donated organ is not a marital asset to be divided, but what exactly does that mean, and would this reasoning carry over in the state of Florida?

Like many states around the nation, Florida is an equitable distribution state, requiring that upon a dissolution of marriage proceeding, the court will distribute the marital assets and liabilities between the parties equally. As this policy suggests, this equitable division relies on the court’s determination of what may be considered marital property. In Florida, marital assets and liabilities include the following: (1) assets acquired and liabilities incurred during the marriage by either spouse; (2) enhancement in value of nonmarital assets resulting from efforts of either spouse during the marriage; (3) interspousal gifts during marriage; and (4) and benefits, rights, and funds accrued during the marriage. Florida law dictates the trial court must separately classify property as marital or nonmarital where it is not included in the 4-factor list previous mentioned. Where exactly does a donated organ fit in this scheme? If classified as marital property, then its “value” will get divided. If classified as nonmarital property, then the donated organ’s value will not get factored into any divorce settlement that is reached. Because it does not neatly fit into any one of the four categories, it is likely the trial court judge would make the ultimate classification.

The Florida courts have never faced such a tough and unique situation. If it ever does, perhaps it will follow what the New York State Supreme Court, New York’s trial court, has ultimately concluded. Just two days ago, the New York State Supreme Court marital referee Jeffrey Grob stated that it was not legal to place a monetary value on a human organ. The court held that human organs were not pieces of property to be divided like other marital property during divorce. Dr. Batista has appealed this decision.

What is to be learned from this case and its implications? Before going through a divorce, know what property is subject to equitable distribution. If you have any questions concerning what property will be divided between you and your spouse upon divorce, its best to simply consult an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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If you are getting divorced in the state of Florida, the courts follow a rigid guideline in the equitable distribution of all marital property. What does that really mean? Simply put, all assets and liabilities determined to be “marital,” or shared between both husband and wife while married, are assessed and then distributed evenly to both parties after the dissolution proceeding. But this begs the question: What about my non-marital assets, or assets that will not be factored into the court’s equitable distribution analysis? Because Florida distinguishes between marital and non-marital assets, if a wife believes that some piece of property she acquired before marriage should not be considered in the distribution of marital property, it is her obligation to show the court why that asset is a non-marital.

Florida courts generally presume that all assets and liabilities incurred after the exact date you get married are marital for purposes of equitable distribution in a dissolution of marriage proceeding. However, if you are a spouse with the premarital property and feel your husband is not entitled to share in that asset, look to the example mentioned above, you can defeat this presumption by a showing of why the assets and liabilities are non-marital. Because the division of assets and liabilities is one of the major concerns when couples are going through a divorce, it is a great idea to draft a list of all assets and liabilities and label them either marital or non-marital before the dissolution proceeding begins – this could save you a lot of time later on. To help you and the courts decided categorization, the Florida Legislature has enacted a statute that creates a list of assets and liabilities that are considered marital or non-marital.

Martial assets and liabilities include: (1) assets and liabilities incurred during marriage, either individually or both spouses; (2) increased value and appreciation of non-martial assets due to the efforts of either party during the marriage or because marital funds contributed to that increased value; (3) gifts one spouse gives to the other during that marriage; and (4) all vested and non-vested benefits, rights, and funds that came due during the marriage (including retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans). It is also presumed that all real and personal property held as tenants by the entirety is marital, regardless of whether the property was purchased before or during marriage.

Nonmarital assets and liabilities include the following: (1) assets and liabilities incurred before you got married; (2) assets acquired individually by either spouse by non-interspousal gift, bequest, devise, or descent, or any exchange for these assets; (3) all income received from non-marital assets during the marriage unless that income was used or relied on by the spouses as a marital asset; (4) assets excluded based on a valid written agreement made by the parties (think: pre-nuptial agreement!); and (5) liabilities incurred by one spouse as a result of the other’s forgery or unauthorized signature of that spouse’s name.

In Florida, all assets obtained during marriage will be considered marital until the date the parties enter into a valid separation agreement (that may include a different date to consider) or the date a petition for dissolution of marriage is filed with the court. If you are in the beginning stages of a divorce, consult with an attorney to know what your rights are in regards to your marital and non-marital property.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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In Florida, the equitable distribution statute mandates that a court must equitably distribute the marital property of parties to a divorce action. This generally means that each party will get half of the marital assets regardless of fault. Furthermore, the parties to this action do not have to specifically plead or request equitable distribution of all marital assets, it is presumed. Therefore, a trial court is required to divide marital assets and liabilities equally between spouses, unless the court makes a finding which supports an unequal distribution. While an equitable distribution presumption is the court’s starting point, Florida provides a list of factors that must be considered to determine if an unequal distribution of property is justified. Interestingly enough, the statute does not list marital fault as a factor to be considered in effecting an equitable distribution.

The factors a Florida court looks at to determine whether marital assets should be equitably distributed include: (1) how much of a contribution each spouse makes to the marriage (which includes care and education of the couple’s kids or work as a homemaker); (2) each party’s economic position; (3) how long the marriage has lasted; (4) whether the educational goals of either spouse has been interrupted; (5) whether one spouse has personally contributed to the other spouse’s career or educational goals; (6) whether one spouse wants to keep assets in their same form without any interference; (7) each spouse’s contribution to acquiring, enhancing, and production of income, as well as the improvement of both the marital and nonmarital assets (8) whether one spouse wants to keep the marital home as a residence for any dependent children; (9) whether either party intentionally dissipated, wasted, depleted, or destroyed marital assets after filing for divorce or two years before filing for divorce; and (10) all other factors needed by the court to determine a fair and equitable distribution.

Martial fault, although unlisted within the Florida statute, may play a part in the distribution of your marital assets. It is not listed within the statute because distribution based on one spouse’s “fault” would essentially reward the innocent spouse and punish the offending spouse. According to the Florida Supreme Court, the purposes of equitable distribution is not to punish a philandering spouse overturning a trial court’s award of 97% of the marital assets to a wife whose husband committed adultery. However, showing evidence that one spouse has cheated on the other is relevant when it demonstrates that the adulterer has depleted marital resources. For example, one spouse using the couple’s marital funds to further his or her adulterous behavior can be used against them in a court’s determination of equitable distribution. A trial court can even assign the depleted funds to the adulterous spouse as part of that spouse’s equitable distribution. See Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994). A spouse who wishes to assert this ground must demonstrate the causal connection between the other spouse’s adulterous misconduct and the couple’s financial circumstances. This may prove to be an advantageous loophole for some!

For more information about Florida’s equitable distribution of marital assets, please consult an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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Most divorces tend to focus on the “blame game.” For example, “My spouse cheated on me!” or “My spouse has deserted me!” All you have to do is look at the headlines in the newspaper. Most stories focus on the adulterous affairs of a celebrity spouse. Does Christie Brinkley or A-Rod ring a bell? Yet, is the question of which spouse had the affair relevant for the purposes of filing for divorce?

In some states, there must be a legitimate reason to file for divorce. Florida takes a different route, neither spouse needs to be at fault for a dissolution of marriage proceeding to be initiated. Florida is a no-fault state, and unlike other states, in Florida there is no waiting period to initiate proceedings when fault is absent.

As long ago as 1948, the Florida Supreme Court recognized the wisdom of divorcing husbands and wives who no longer wished to remain married to each other, regardless of fault. In Florida, if you want a no-fault divorce, you must assert that it is “irretrievably broken” and the to test is determine whether the marriage is irretrievably broken, for whatever reason or cause – no matter who is “at-fault” – is whether the marriage relationship is no longer viable.

The court will also look at other factors. Is reconciliation impossible? Whether as a matter of fact, has the marriage ceased to exist? If you want a divorce in Florida, the court considers your state of mind above all else. Common reasons that have been accepted by the court include: no love, no companionship and no home life which have caused parties to drift apart or simply make the couple unsuitable for each other. In fact, stating “I don’t love him or her anymore and I don’t want to stay married” should be enough evidence for the court.

But beware! Although fault of one party is not needed for the dissolution of the marriage itself, it is a factor the court may consider in determining alimony, equitably distributing marital assets and liabilities, determining parental responsibility, and awarding attorney’s fees. So, although fault isn’t important to start a divorce proceeding, it may be important when the marriage is over.

For more advice on filing for divorce, or divorce in general, please contact an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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