Marital Assets and Debts

One of the biggest concerns that a person who is contemplating getting divorced has is how a court will divide up all of their personal property and debts.  In Florida, the general rule is that all assets that were acquired and all debts that were incurred during the marriage are presumed to be “marital” and that there is a basic presumption that marital debts and assets will be divided equally between the husband and wife.

Florida Statute § 61.075 defines which assets and debts are marital as well as which ones are non-marital.  Under § 61.075 the court is required to divides all of the husband and wife’s “marital” property and also provides.  This section further requires that each item of non-marital property remain the property of the spouse who owns that particular property.

Section 61.075 makes it very clear that Florida is an equitable distribution jurisdiction as opposed to a community property state.   As an equitable distribution jurisdiction, the court is guided by principles of equity which means that both the husband and wife should be treated in a fair manner when dividing assets and liabilities.  Although the division of assets and debts should be equitable, it is not required to be completed in exactly the same manner, but the parties should exit the marriage with a similar amount of the marital estate.

Florida judges are provided with a lot of discretion in how they fairly divide marital assets and liabilities, so it is not easy to figure out exactly how a judge will divide up your marital estate.  So the first step of dividing assets and debts is determining exactly what constitutes marital as opposed to non-marital property – which is not always an easy task.  Obviously, if an item of personal property was purchased during the marriage it is considered to be marital.  In addition, it doesn’t matter whether the property was acquired by the husband or the wife or how it was paid for.  Even if the husband and wife maintain their own individual bank accounts where their paychecks are deposited, any item purchased by either party using monies from their own personal accounts are still considered marital property.

Since Florida does not recognize common law marriages, the wedding date is the beginning date of the determination as to which assets and debts are marital.  On the other hand, determining the cut-off date becomes much more challenging since § 61.075 (7) defines this date as “the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.”

Once the court determines what items constitute marital assets, then the court has to place a valuation for each asset which can be highly contested between the husband and wife especially because the § 61.075 (7) also provides that the “date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge s discretion, the circumstances require.”

Since New Horizons Law, P.A., Michael J. Costantino, Esq. recognizes the difficulty in valuing marital assets and debts for our clients; we take the time to assist you in obtaining proper valuations from appraisers and other professionals.

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