Articles Posted in Equitable Distribution

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An ex-husband who failed to make payments to his ex-wife, even though he was financially able, was nevertheless able to escape being slammed with contempt of court. The 5th District Court of Appeal overturned a trial court decision that found the man in contempt, ruling that the payments were part of the equitable distribution in the couple’s divorce and that contempt cannot be used to enforce equitable distribution payments.

When J.L. (husband) and A.L. (wife) decided to divorce, the trial court divided up several assets, including the retirement benefits of the husband, who was a state employee. The trial court awarded the wife 50% of the marital portion of the husband’s state retirement. Unfortunately for everyone, however, things did not go as planned. Before the husband could retire, he suffered an injury at work. Instead of receiving retirement benefits, the husband began collecting permanent disability benefits.

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An important new Florida Supreme Court decision helps clarify the applicability of waivers in prenuptial agreements. The court concluded that, if a prenuptial agreement’s terms made it clear that a spouse was waiving and releasing all rights and claims to the other spouse’s separate property, that waiver included the increase in value of those non-marital assets, even if the agreement did not expressly cover increased value, and the increase was due to marital efforts or funds.

The case brought to a conclusion the divorce dispute between H.H. (husband), a mortgage broker, and his wife, D.H. The couple married in February 1986 and remained married for 22 years. The month before their marriage, both spouses signed a prenuptial agreement. The agreement stated that, if the spouses purchased a property in both their names, the asset was presumed to be owned 50-50 between them, but if the husband purchased an asset in his own name, even during the marriage, that asset was his separate property.
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Creating an equitable distribution between divorcing spouses can often be complex. This can be especially so when one or both spouses hold nonmarital assets that are subject to mortgages and use marital assets to make the mortgage payments on those properties. In the case of one Southwest Florida couple, the 2d District Court of Appeal ruled that the wife should received an offset because, even though the husband’s property declined in value during the marriage, his equity in the asset increased as a result of paying down the mortgage using marital funds.

In this circumstance, R.S. (husband) bought a building in Queens, NY in 1998 that housed two residential apartments and a commercial space. By the time the building owner married his wife, M.S., in 2007, the value of the building stood at approximately $900,000. Shortly before the couple separated five years later, the husband sold the building for $680,000. At the couple’s divorce trial in Fort Myers, the court concluded that the building did not appreciate in value during the duration of the marriage.
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In many divorce cases, assets are often declared to be marital property unless one spouse kept an asset completely separate. However, in one recent case, the 4th District Court of Appeal declared a couple’s home in Loxahatchee to be the husband’s separate property, even though the couple used their pooled incomes to pay the property’s mortgages and expenses. The ruling stated that, since the property was worth less when the couple divorced than when they got married, the wife’s contributions did not enhance the value of the property, meaning the home remained the husband’s alone.

Years before he married his wife, Lori, William Weaver purchased a property in Loxahatchee. When the couple decided to marry, Lori Weaver sold her house and obtained a profit of $40,000. During their marriage, the Weavers paid the monthly mortgage payments, as well as all expenses on the Loxahatchee home, using their pooled incomes.
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Some spouses like to joke with their partners by reciting the well-worn humorous phrase, “What’s mine is mine and what’s yours is ours.” Florida law allows spouses to have certain assets that belong to that spouse alone. However, the law creates certain triggers that, if they occur, convert a non-marital asset into a marital one. That’s what happened to one Polk County woman, whose $78,000 in cash gifts from her mother were, according to the 2d District Court of Appeal, marital because she commingled that cash in an account that also contained marital funds.

Roberta Dravis’ mother was very generous toward her daughter. Every Christmas and birthday, the mother gave her gifts of cash. Dravis deposited these gifts in an account at CenterState Bank that she and her husband, Dean Dravis, jointly owned. By the time the couple separated, the total sum of the mother’s gifts to her daughter amounted to $78,000.
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Two of the most important decisions many parents will make regarding their children center around the children’s education and their religious affiliation. Two recent cases, one from the 3d District Court of Appeal and one from the 2d DCA, demonstrate the importance of documenting the entirety of your and your spouse’s agreement regarding your children’s education, and of understanding exactly how tuition payments may affect child support calculations.

If both parents agree that their child (or children) should attend private school for some or all of their education, the marital settlement agreement between the parents should be very clear about what the couple agreed to, since when an agreement is silent on an issue, the courts will construe that to mean that the couple did not resolve that issue.
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Divorce can bring out many complicated issues, particularly when it comes to money. On the one hand, a nefarious spouse may try to deplete assets before the case is finalized. On the other hand, spouses continue to have bills and financial obligations that often require dissipating marital assets to pay. Regardless of what a spouse’s true motives may have been, the dissipation of marital assets should only be included in an equitable distribution of assets if the trial court specifically finds that the dissipating spouse engaged in intentional misconduct, the 4th District Court of Appeal recently ruled.

Bonnie Jean Platt filed for a divorce from her husband, Minor J. Platt, Jr. While the case was pending, the wife allegedly took several guns and pieces of jewelry and sold them. After the sales, the court heard evidence regarding the value of the sold items, and it concluded that the guns were worth $6,500 and the jewelry had a value of $6,200. Having made this determination, the trial court then included that $12,700 as an amount that the wife received in calculating the couple’s equitable distribution.
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Few spouses, while happily married, stop to consider maintaining the proper legal segregation of assets they acquired separately before or during the marriage. This often leads to trouble when a spouse mixes his/her separate assets with marital property and, as a result, causes the law to view that asset as having become marital property as well. One recent decision from the 4th District Court of Appeal, ruling that a real estate interest a wife inherited had converted to marital property, demonstrates the problems a spouse can create when she fails to maintain the required separation.

Before the couple married, the woman and her two sisters inherited a house. While the couple was married, the wife bought out her sisters’ ownership interests in the house. The couple eventually renovated and sold the house. They paid for the renovations from money in a marital account. When they sold the house, they deposited the proceeds into a marital account. What was left over after capital gains taxes remained in that marital account for the next 10 years, where they used to money to make stock trades.

Some time later, the husband filed for divorce. The trial court ruled against the husband’s request to include the wife’s original one-third ownership interest as a marital asset for purposes of equitable distribution.
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Sometimes, in divorce matters, a couple can seem to reach a mutual agreement on the distribution of their marital assets, only to uncover a sticking point later. Such was the case for one Florida couple, who battled over the division of the husband’s military pension. The Second District Court of Appeal threw out a trial court order regarding the pension because the terms of that order contained elements that were not part of the couple’s mutual agreement and allowed the wife to share in benefits the husband would earn after the marriage had ended.

J.F. filed for divorce in 2011. His wife asked for a division of the couple’s retirement accounts as part of equitable distribution of their assets. The couple arrived at a settlement agreement, which they conveyed orally to the court on the record. At the hearing, some confusion emerged when the spouses’ attorneys attempted to recite the agreement about the husband’s military pension to the trial court. The parties later disagreed on the precise terms of the division of the military retirement, and the trial court held another hearing. The husband later challenged the resulting “Order for Division of Military Retirement Pay”, claiming it did not reflect the couple’s true agreement.

The appeals court agreed with the husband. The order suffered from two fatal flaws. First, it gave the wife a share of several future benefits, including the husband’s post-retirement cost-of-living adjustments, a portion of any retroactive payments the husband might receive if he chose to remain active after his normal retirement date and a piece of the husband’s exit bonuses, voluntary separation incentive pay or special separation benefits. This was problematic because the husband would not accrue any of these benefits until after the marriage ended and none of these benefits were discussed in the couple’s oral recitation of their agreement before the trial court. As a result, the wife had no claim to a share of those benefits and the order should not have included them.
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A wife’s effort to claim to claim two burial plots as belonging solely to her failed as a result of an unfavorable 1st District Court of Appeal decision. The court concluded that, although the two plots were her separate assets when her aunt gave them to her, one of the plots became marital property when she chose to transfer ownership of that plot from her name to the names of her and her husband collectively. This transfer constituted a spouse-to-spouse gift that changed the status of that plot.

In happier times, the couple decided to add the husband to the deed of one of two burial plots the wife had received as gifts from her aunt. Some time later, the couple’s marriage deteriorated and the pair sought to divorce. As part of that proceeding, the trial court considered how to classify the burial plot co-owned by both spouses. The trial court ultimately declaring the burial plot as non-marital property that belonged to the wife.

The husband appealed this decision, and the 1st DCA agreed with the husband. In resolving the question, the court decided that the wife’s decision to add the husband to the deed of one of the plots changed that asset’s status. Florida Statutes Section 61.075(6)(b)2 says that an asset acquired by one spouse as a result of “noninterspousal gift,” even during the marriage, is nonmarital property belonging to the spouse who received the gifted asset. That is what happened when the wife’s aunt gave the plots to the wife, meaning that, at that point, both plots were nonmarital assets belonging to wife.
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