Asset and Liability Division FAQs
By: Norman D. Levin, Esquire
Florida Board Certified Marital & Family Law
Fellow, American Academy Matrimonial Lawyers
When a client comes into our office we try to make sure they have a good general understanding of the rules relating each specific area involved in their case. This will differ from state to state. Dividing Assets and Liabilities in Family Reorganization Cases in Florida is called "Equitable Distribution".
Here are answers to some frequently asked questions on this topic for clients and potential clients. Some terms should be defined for this discussion and these definitions are listed at the end of this discussion.
What property gets divided?
In Florida the Court will distribute all assets and liabilities acquired during the marriage from marital efforts or marital action.
Typically the following rules apply.
1. The property and liabilities each party enters the marriage with and which continues to be identifiable at the time of reorganization will be set aside to that person as their separate property.
2. The property and liabilities received or incurred by any party during the marriage by gift or inheritance from 3rd parties (not one of the spouses) and which continues to be identifiable at the time of reorganization will be set aside to that person as their separate property.
3. The property and liabilities designated in a pre-marital or marital settlement agreement as non-marital and which continues to be identifiable at the time of reorganization will be set aside to that person as their separate property.
4. All other assets and liabilities remaining will likely be subject to distribution by the Court.
What about an inheritance?
Inheritances are usually treated as non marital property.
What is equitable, will I get 50/50?
In Florida, a 50/50 division of the marital estate is presumed unless a Court specifically identifies facts that make such a distribution unfair. The type of facts that might justify an unequal division of the marital estate are:
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.
Can I get half of his/her retirement? The simple answer to this question is that the non working spouse can usually obtain a portion of the other party’s retirement if it is part of the marital estate. Generally all retirement assets earned during the marriage will be subject to distribution.
If the non-working spouse wants to receive ½ of the actual retirement, this can usually be accomplished through a QDRO (Qualified Domestic Relations Order) without negative tax implications.
Retirement that was earned before the marriage or after the end of the marriage is usually not subject to distribution by the Court.
Government and military pensions are often subject to special rules in this area. Some government pensions are not subject being transferred by QDRO and require special payment provisions in your final agreement or judgment.
Military pensions can only be transferred with direct payments to the non military spouse from the government if the parties were married for more than 10 years while the service person was in the military.
Can I get half of his/her bonus?
When was it earned? If earned during the marriage, then it is likely subject to distribution, even if received after the end of the marriage. Otherwise, it is not subject to distribution. However, continuing bonuses may still be considered for support or alimony purposes.
Can I get back the money my parents/relatives gave us? - The important words in this question are the words "gave us". If it was something given to both of you, it is a joint asset and likely subject to distribution. If it was given to an individual, then the general gift rule will apply and it will be deemed non-marital. This is often a subject of dispute and proof.
Who gets the jewels? Whose jewels are they? When were they received? Now apply the rules. If he gave her gifts during the marriage, they are hers but subject to distribution. If he gave her gifts before the marriage they are hers and not subject to distribution usually. If they are jewels that they bought for investment they are likely joint and subject to distribution. This question can get complicated when jewelry purchased before the marriage is later traded for other jewels during the marriage.
Who gets club memberships? In whose name is the membership and what are the Club Rules. Most clubs have written rules and procedures for these situations that will govern. Most of these memberships do not allow both parties to continue in the club after marriage. If the Husband is the named member, he will likely get the membership. If there is a joint membership then Club Rules will govern. In any event, if the membership has monetary value, it will be included in the marital estate if it was obtained during the marriage.
Can I empty the bank account? Yes, you can, if your name is on the account and there are no restrictions on the account for withdrawals. However, it may or may not be a good idea to do so. Empty an account and the war is on. If you are dependent on the other person for support, this may backfire. It is often sensible to take a portion of the account for emergency circumstances.
Can he/she make me sell the house? If it is titled jointly, the answer is probably no. But the Court can order it sold as part of a distribution. In Florida a second count must be added to the lawsuit to accomplish this. If the home is titled to him solely, then he may have control of the selling of the asset. But in Florida your homestead rights rights will keep him from selling it without your agreement.
Does the custodial parent always get the house? Not always. But, where there are small children and enough finances to keep the house, it is probable that this will occur. The Court can ususally make an award of exclusive use and possession of the house until the children all reach majority.
Can credit cards be cut off? Yes they can if the other spouse is the holder of the card or if it is a joint account. If he/she is a mere signer, then it cannot be cut off. It is a good idea to always have some credit cards in your own name so that you have established credit should a separation or dissolution occur.
How can credit cards be cut off? If you are concerned about the other party charging up your cards, you can take the following steps: 1) Cancel the card; 2) Restrict the use of the card to only you; 3) Have new cards issued to you with no authority for the other person or 4) Put credit limits on the card that restricts significant harm. Call your credit card company immediately to get their procedures for these changes and follow their rules. The company phone number is usually on the back of the card and on your statements.
Can I fix up the house and make him/her pay since I want to keep my home? Not unless the Court orders this. As part of an agreement this can be achieved. If the house needs repair and the other person is unwilling to make the payments, make sure your law suit specifically pleads this problem and asks for this additional relief.
Who pays student loans? When were they incurred? Pre-marriage - probably the borrower. Post marriage - it will likely be treated like other marital debts. Sometimes an argument can be made that the benefit of the loan is going to one party without a distribution impact and that the debt should go to that person even if it creates an unequal distribution.
I guaranteed his business debt, how do I get out of it? The loan will need to be refinanced or the lending institution will have to release the co-signer from liability. This can often be accomplished by the primary borrower working with his/her lender.
Do I have to pay the balance on her car/lease? Be careful if your name is on the lease. You could be held liable if she fails to make payments even if she gets the car. Your liability to the third party is dependent on your contract. Leasing companies are not easy to get releases from. Otherwise, this issue will be part of the division and support cases.
Can I make him buy me a new car because I drive the kids around and my car is shot? You could ask for this type of relief and include its concerns in the distribution and support claims you have. The Court will probably not order this type of direct relief except in unusual circumstances. It is certainly something you can negotiate for.
How can I get my name off the mortgage, credit cards, car loan? The loan will need to be refinanced or the lending institution will have to release the co-signer from liability.
Am I responsible for tax debts? You are if you signed the tax return. However, if the liability rises from circumstances that you had no knowledge of (i.e. failure to pay business income related taxes) there is a special rule called the "Innocent Spouse Doctrine" that could get you relief. If you are in this situation you should speak to a lawyer or CPA with special tax knowledge to make sure if you qualify. The Court can also distribute this liability. But, if the other party gets the debt and doesn’t pay, you might still be held responsible by the IRS for the debt. You would have to enforce back against the responsible person by an enforcement suit.
My parents loaned us money - who has to repay that? What does the written loan agreement say? It will govern and will usually be followed by the Court. If there isn’t anything in writing, you may have an argument brewing over whether the money was a loan or a gift. You should get all the evidence you can to prove this was a loan and not a gift if you expect it to be enforced as a loan. If you prove a loan during the marriage for marital purposes then it will be counted in the distribution regardless of who gets the assignment for payment.
If my husband goes bankrupt, am I responsible for joint debts? Yes, unless you also discharge the debts in bankruptcy.
2. Non-Marital Assets and Liabilities - This term is used herein to indicate assets and liabilities that are not subject to distribution by the Court in a disputed distribution case. In many states this is referred to as separate or non community assets and liabilities as well.
3. Marital Estate: The complete group of assets and liabilities that will be distributed by the Court in a disputed distribution case.
4. QDRO(CUA-DRO) - A Court order that orders a retirement account or pension to be divided between the parties without tax penalties.
5. End of the Marriage - This refers to the end of marriage for distribution purposes and will vary from state to state which can be: 1) Date the parties separate; 2) Date the Dissolution is filed; 3) Date of trial of the case; 4) Date of the final judgment or 5) An equitable date chosen by the court which can be different for different assets and liabilities.