Division of Assets Attorney in Pensacola
During a divorce, one of the most important issues that needs to be settled is the division of the marital estate. When a marriage is dissolved, the property that was acquired while the couple was married must be divided in a way that is fair and equitable for both spouses. Marital property can often mean far more than just the family home; it also includes cash, bank accounts, retirement accounts, personal items, debts, and in some cases more complicated assets.
If you are considering getting divorced, you need an experienced family law attorney who understands how the division of assets works and what important factors need to be considered in resolving this issue. At Whibbs, Stone, & Barnett, we have over six decades of combined experience representing individuals in the Pensacola area for divorce and other types of family legal issues.
Our attorneys understand the complexities involved with issues like the division of property and what is needed to fairly divide the marital estate. We work closely with our clients to listen and understand their needs and what is most important to them, so we can settle these issues in a way that fully protects their interests and satisfies all parties involved.
Understanding Fair and Equitable Distribution in Florida
Florida is not a community property state, which means that marital assets are not necessarily divided 50/50 during a divorce. Instead, they are divided in a way that is supposed to be “fair and equitable”. An equitable distribution is determined by the court based on a number of factors, which may include:
- The duration of the marriage.
- The contribution of each spouse to the family finances.
- The contribution of each spouse to the maintenance of the household.
- The contributions of one spouse to the furtherance of the other spouse’s career.
At the end of the day, it may end up being a 50/50 division of assets. But on the other hand, a perfect 50/50 split may not be practical. For example, if it makes sense for the spouse with majority parenting time to keep the marital home and it is worth slightly more than the rest of the assets, then a court might decide to give one spouse the home and the rest of the property to the other.
When dividing marital property and working out other important issues, it is in everyone’s best interests to try to negotiate these issues between themselves without the involvement of the court. The spouses understand their own specific circumstances far better than the court does, so you are more likely to end up with an outcome that is positive for both sides if you work together on a settlement. Not to mention that if you decide to fight it out in court, it will take longer and cost a lot more money.
Our attorneys are skilled litigators and strong negotiators. When possible, we look to negotiate a fair and equitable settlement that works for you. But if your spouse is unwilling to be reasonable, we are ready and able to forcefully advocate for your legal rights in front of the court.
What is Considered Marital Property?
Before the marital estate can be divided, you must determine what is to be considered marital property and what is separate property. This is where a lot of disputes tend to arise when spouses are not on the same page about how these terms are defined.
In general, marital property is anything that was acquired or accumulated while the couple was married. There are some exceptions to this, and they can go both ways. For example, property that was received by one spouse as a gift or an inheritance is generally not considered part of the marital estate. However, nonmarital property that gets co-mingled with marital property might end up belonging to the marital estate. Examples of the latter include:
- The spouse’s name being added to a bank account that the other spouse brought into the marriage.
- Marital funds being added to an individual non-marital bank account.
- Non-marital funds being added to a joint marital bank account.
- Non-marital funds being used to purchase a home or another asset that is in both spouses’ names.
There are some other situations that can make the division of marital property and assets even more complicated. For example, if one spouse brought an individual retirement account into the marriage but contributions and appreciation of value during the marriage significantly increases the value of the account, we will need to determine how much of the retirement account is marital, and how much is nonmarital.
The same holds true for a business that was individually owned by one of the spouses prior to the marriage, then the business gains significant value during the marriage. In this type of case, we would also need to consider any contributions that the other spouse made to the business while they were married, either financially or work that they put in.
To help ensure that you emerge from the divorce in a stable financial position, it is important to take steps in advance to protect your assets and finances:
Document All of the Household Income and Assets
One of the first steps in protecting your assets during your divorce is knowing and understanding what assets you have, and how much income the household brings in. Take a full inventory of all of your marital property and income. Make copies of bank statements, statements for retirement accounts, investment accounts, titles to real estate and vehicles, etc. In addition, take photos of valuable possessions that belong to the household. Keep all of this information in a safe place, perhaps on a flash drive that you can store somewhere outside the marital home.
Open a Personal Bank Account
If you do not have a bank account that is in your name only, it is time to open one up. You will need a separate account to pay for the legal expenses of the divorce and to pay for living expenses assuming you are planning to move out and live on your own after you file. If you transfer marital funds into this account, be transparent with your spouse about this as you do not want to be accused of hiding assets. A good goal to shoot for is to have at least three months of living expenses and legal fees saved before you file for divorce.
Pull a Copy of Your Credit Report
Before you file, you will want to know how your credit looks and what credit accounts are open jointly in both of your names. You can obtain a free copy of your report at https://www.annualcreditreport.com. Check your credit report for any errors and inaccuracies, and if there are any negative items that should not be there, file disputes with the reporting agencies to have them removed.
It is important to note that you are not legally allowed to pull a copy of your spouse’s personal credit report without a “permissible purpose”, and unfortunately, divorce does not fall into this category. However, if you suspect that your spouse may be hiding income and/or assets, your divorce lawyer may be able to obtain their credit report legally through a subpoena or court order.
Close Joint Credit Accounts
After reviewing your credit report, identify any jointly held accounts and close them. Leaving joint accounts open is inviting trouble as some spouses intentionally run up debt in retaliation for a divorce filing. In some cases, you might have a balance that needs to be paid first before closing the account. If you are unable to pay off the balance, contact your creditors to find out what steps need to be taken to get your name removed from the account.
Get a New Mailing Address
As you prepare to go out on your own, you do not want your personal correspondence from your bank, attorney, or anyone else to be mailed to your marital home. To protect your personal information from your spouse seeing it, set up a new mailing address. The least expensive way to do this is to rent a post office box from the USPS. Or if you prefer to have a physical street address, you can pay a little more and get one from a mailbox service like the UPS Store.
What if There is a Prenup/Postnup?
A growing number of marriages these days have marital agreements that govern how the assets will be divided in the event of a divorce. This could be a premarital (or prenuptial) agreement that was signed before the couple was married, or a postnuptial agreement that was signed after the marriage was completed.
In either case, the terms and conditions of a valid marital agreement will take precedence over Florida’s property division laws as long as a court determines that the agreement is fair. That said, there are some reasons why a prenuptial or postnuptial agreement may not be valid:
- Not Properly Executed: Florida law requires a written agreement that is signed by both parties, two witnesses and a notary. An oral agreement or one that does not have the proper signatures is not enforceable.
- Signed under Duress: One spouse forced the other to sign and/or one of the spouses was intoxicated and not in their right mind when they signed it.
- Document is Vague or Poorly Drafted: Sloppy wording that makes the agreement vague and difficult to interpret can undermine its validity.
- Insufficient Disclosures: If one spouse did not disclose all of their assets and/or income, this deception could cause a court to rule the agreement invalid.
- Agreement is Unconscionable or Contains Invalid Provisions: A court may rule that a prenuptial or postnuptial agreement is unfair and one-sided and therefore invalid. The agreement may also be ruled invalid if there are provisions that are barred from these agreements by Florida law, such as the amount of the child support payments.
Contact our Seasoned Pensacola, FL Divorce Attorneys
The division of marital property can be one of the most stressful aspects of any divorce, but it does not have to be this way. At Whibbs, Stone, & Barnett, we are here to provide strong legal guidance and moral support to help ensure that your divorce goes as smoothly as possible. To schedule a consultation with one of our attorneys, message us online or call our office today at 1-888-219-4561. We look forward to serving you!
