Many people face the prospect of divorce with anxiety about the future because they are unsure what to expect from the divorce process in Florida. While there are many important issues in Florida divorce cases, the disposition of property and debts between parties to a marriage is one of the most urgent issues. During the divorce process, the division of property and debts will play a critical role in providing a firm foundation to rebuild and provide for your family following divorce. Experienced West Palm Beach divorce attorney James S. Cunha and his legal team has provided answers to frequently asked questions (FAQs) regarding the equitable distribution of property and debts in West Palm Beach divorces.
(1) What does the “equitable distribution of property” mean in the context of a Florida divorce?
The term “equitable distribution of property” refers to the process used in Florida marital dissolution cases to divide property and debts. Unlike community property states where the court will automatically deem that all property acquired during a marriage is owned equally by the parties, an equitable distribution state provides courts more leeway for an unequal distribution of marital property despite being required to begin with the premise that the distribution of property should be equal. A Florida family law judge may justify an unequal distribution of property based on evaluation and application of the following factors:
- The relative overall financial situations of the parties
- The debts and liabilities of each spouse
- Contributions of each spouse in terms of improvement of marital and non-marital assets
- Sacrifices of a spouse in education or career to contribute to other spouse’s education or career
- Contributions to the marriage as a wage earner, homemaker or spouse
- Waste or destruction of marital assets within two years of filing for marital dissolution
- Merits of allowing minor children to continue to reside in the family home
Our attorneys are meticulous and thorough at conducting discovery, analyzing financial records and evaluating the marital estate so that we can pursue a positive outcome for our family law clients in West Palm Beach and the surrounding South Florida area.
(2) We have no children and have agreed on how to divide property or debts so why do we need a Florida marital dissolution attorney?
While your agreement on how to divide assets like the family home, 401k plans, vehicles and other property may be appropriate, you should never execute a settlement agreement without obtaining legal advice from an experienced West Palm Beach divorce attorney. Our attorneys can analyze your agreement and anticipate potential issues that could make your proposed settlement unfair or ambiguities in the agreement that could force you to return to court after the judgment, which would result in further attorney fees and court costs. Mr. Cunha and his legal team may also provide you with some perspective in terms of how the judge might handle property and debt distribution issues absent an agreement.
(3) Can a creditor or lender pursue me for a debt if it was assigned to my spouse?
While you and your spouse may elect to assign an entire debt to one spouse that is offset by assets assigned to the other spouse, this designation is only binding between the parties. Married parties do not have a right to unilaterally relieve the other spouse of the obligation to pay a debt. If the credit of both parties was used to obtain the financial obligation or both spouses signed the application, it is likely that you may be pursued by the creditor if your spouse does not pay.
(4) How will the family home be handled during the Florida divorce process?
Many divorces involving children result in a disposition that allows the minor children to continue residing in the marital home. However, the other spouse may be entitled to have his or her property interests in the home bought out by the other spouse. This is usually accomplished by offering offsets in the form of other debts or assets. Even if the family home was owned prior to marriage by one of the parties, it will still have a marital property interest to be divided if mortgage payments, improvements or other contributions are made to enhance the value of the asset from marital funds.
(5) Does my spouse have an interest in my retirement plan that I contributed to before marriage?
Many times a spouse will have made contributions to a 401K or other retirement plan prior to marriage. However, income earned during marriage is marital property so when contributions are made toward the retirement account during the marriage the retirement plan will have both marital and non-marital property component. A court will also consider any passive and active appreciation upon classifying pension benefits. The marital property component will be subject to equitable distribution.
Contact the Law Offices of James S. Cunha, P.A. at 561-429-3924 to schedule a consultation.
