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Brandon Legal Blog

How Does a Debt Become An Asset?

This actually happened in a high asset divorce case. 

Crazy question, I know, but recently an opposing attorney in an alimony case actually made this claim in a dissolution proceeding.  The short answer is that a debt is a debt, not an asset from which the Court can determine

A divorce later in life can make finances difficult

Just recently this Florida family law and divorce blog discussed an interesting trend in American divorces -- marriages are ending at a higher than average rate for older individuals. Often termed "gray divorce," the end of a marriage between people who have spent a significant number of years together can be more than just emotionally taxing -- it can be incredibly costly.

When older couples divorce they often do not have to contend with some of the more major issues that plague couples with young children - custody, visitation, and child support. Instead their concerns may revolve around their retirement accounts, their real and personal property, and the intangible investments that they hold jointly with their soon-to-be ex-spouse.

Knowing what to expect when dividing property is helpful

The division of assets can be a concern at the top of the list of many divorcing spouses. Divorcing couples may wonder how their property will be divided if they divorce. In Florida, equitable property division rules are followed which means that the court will seek to arrive at a property division settlement agreement that is fair and equitable for the divorcing couple.

The division of assets can be a complex and emotional process and it can be challenging to achieve an even fifty-fifty split of assets which will guide the court in the divorce settlement process. The process of dividing assets typically involves an equitable, rather than equal, division of assets which is more practical than dividing assets in half. It can result in compromises such as one spouse keeping a family business and the other spouse keeping the family home which may be viewed as a fair outcome.

What is a gray divorce?

Throughout the United States, including Tampa Bay, Florida, and the surrounding area, "gray divorces" are becoming more common. A gray divorce is defined as a divorce of a couple over 50 years of age. In fact, according to the Pew Research Center, gray divorces have doubled over the last 25 years.

Generally speaking, the longer a couple has been married, typically the more complicated the divorce with regards to property division. If you are considering divorce, it might be wise to first consider a legal separation. This can lead to a "cooling down" period which allows you to gather your thoughts and reassess the situation, presumably with less emotion involved in your decision-making. It is not uncommon in divorces for couples to be so upset that they make less than ideal decisions.

Reversal of decision of marital property

The American legal system functions as a set of checks and balances. This is to help rectify if an error was ever made in a legal decision. According to a Florida appellate court, an error was made in determining the ownership of assets and marital property under the trial court's decision to waive a wife's ability to earn alimony and have her legal fees paid. She has now been granted $2500 in alimony, the court reversed a decision to pay for rental property and it's possible that the temporary alimony could become permanent.

Marital property can be a trickier subject for some more than others. Yes, of course, the house, cars and bank accounts almost always ring in as marital property. However, when it comes to assets a person accumulates in relationship to their family; it's not always so cut and dry. That's what happened with this Florida couple, as the wife claimed assets in multiple family members' names should actually be considered marital property. An investigation into these assets proved that they were in whoever's name was more lucrative, depending on who was asking.

How can retirement accounts affect the property division process?

You and your spouse likely worked incredibly hard to accumulate assets over many years into a retirement account. The original thought was that one day a married couple would have enough money set aside in that they could quit their jobs and live out their remaining years together. However, for many Tampa residents, that idea gets snuffed out when a marriage doesn't quite make it to retirement ago. What happens to the retirement account now?

Retirement accounts are almost always considered marital property. Marital property is property accumulated during the marriage that both spouses can lay claim to, even if their wages weren't contributing directly to the account. The courts generally see 401(k)s and similar retirement accounts as property that is to be divided fairly between the spouses in cases of divorce. It is possible to separate funds from a 401(k) in a one-time divorce acquisition during the property division process.

Seeking primary custody of your child may be best

Being a parent comes with a lot of responsibility. There also isn't any greater joy than seeing your child thrive and grow. Parents can seek primary custody of their child in both a physical and a legal sense. Being awarded primary custody can mean a variety of things affecting families today.

Primary custody usually means that a parent has been awarded most of the responsibility as far as physical custody goes. Physical custody refers to where the child is residing the majority of the time. Physical custody determinations are different from legal custody decisions, in which the big decisions are made for the child. Decisions like religion, schooling and things that affect a child's future are granted to parents who are awarded legal custody.

Asset division, property division can include spousal support

Marriage comes with a lot of incentives. Incentives include tax benefits on annual tax returns for filing jointly, saving on co-habitation expenses and other financial pluses. These financial benefits can cause people to be hesitant about filing for a divorce. Oftentimes, people who are filing for divorce are looking at a situation in which they will be living a single life, and the financial changes can make people anxious about how the change will affect them.

However, there is a big incentive to filing for divorce. That incentive is that one no longer needs to be married to someone that they do not want to be with anymore. Financial aspects can be hammered out in the divorce proceedings, and a divorce decree will lay out the finalities in great detail. One aspect that may find its way into the divorce decree is the possibility for one spouse to receive alimony, or spousal support, from the other.

Highest Florida court gives final ruling on marital property

One Florida couple in the midst of the asset division portion of their divorce took their disagreement all the way to the Florida Supreme Court. The couple had been married for nearly 30 years before making the decision to get a divorce. The process of their asset division was complicated by their signing of prenuptial agreements prior to their marriage in 1987. One spouse alleges that separate property in that agreement was marital property due to the spouse's using the assets for residence.

Since the husband's name was the only one listed on two properties the couple used for residence, he alleged that they were separate property. The wife, on the other hand, argued that the properties actually qualified as marital property since the husband practiced donative intent. The trial court found the woman to be correct, while the appeals court sided with the husband in the property division dispute.

Who owns what in a divorce?

A successful marriage may have lasted ten, fifteen or even twenty-plus years. However, that doesn't mean that two people won't wake up, look at each other and realize that they want to go their separate ways. Sometimes people grow apart. So what does that mean for their accumulated marital property?

When talking about marital property to be divided during a high-asset divorce, the goal is to have an equitable division that is fair to both parties. That is all well and good, but what happens if both parties want the same assets? This is where it can get tricky. One may have to bargain for the asset they truly want by giving up something else -- unless the other party can be persuaded otherwise. However, certain marital assets can be split.

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