Jacksonville Divorce Lawyer Blog

Should a party hide assets from his or her spouse to gain an edge during a Florida divorce proceeding? The simple answer is “No”. Florida law requires that each spouse fully disclose assets and income so that the Florida Family Law Judge can effectuate a fair and just ruling based on the facts and evidence. If a party withholds information and these actions are later discovered by the other party or the Judge, agreements and Judgments can be overturned and there can be significant negative consequences to the party who withheld information and / or attempted to hide assets from the consideration of the other party and / or the Judge.

Under Florida Family Law Rule 12.285, each party must completely disclose his / her financial background to the other. Through a Florida divorce proceeding, assets and debts are divided into two separate categories: Marital and Non-Marital. Through an Agreement by the parties and / or an Order by the Florida Family Law Judge, the assets and liabilities are then divided or apportioned to each party based on a variety of factors including the length of the marriage, lifestyle during the marriage, income generation by each spouse, needs of each spouse, needs of the children and other factors.

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During a Florida divorce proceeding, a spouse can get alimony on the same basis that he or she would be awarded at Final Hearing except the alimony award is only for the period of litigation. Temporary alimony in Florida is governed by Florida Statute 61.071. At the final hearing or trial, if you do not meet the criteria for alimony, the temporary alimony would end with the entry of the Final Judgment of Dissolution of Marriage.

Temporary alimony is ordered in many cases to maintain the living standards of the spouse in a manner she/he was living before the filing of the action. Some of the same standards for determining alimony are the same. What are your needs? What is his/her ability to pay alimony ?

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A Florida premarital agreement is a contract between two parties who plan on getting married. While a premarital agreement is not the most romantic act or gesture between two people getting married, it does help prevent a good bit of acrimony and dispute should the parties separate and get divorced in the future. A Florida premarital agreement defines how issues will be resolved in the unfortunate event of a Florida divorce.

In Florida, there is even a law governing how you create such an agreement. Florida Statute 61.079.

A premarital agreement in Florida helps to resolve issues like what are marital assets and liabilities (debt), alimony, child support, and other expected issues. The validity and enforceability of the agreement can be affected if there is a lack of full financial disclosure or if there is fraud prior to the execution of the Florida premarital agreement.

Some parties draft their own premarital agreement. While this may save some money on attorney fees, it can be quite expensive in the long run if there is a separation or divorce in the future. A clearly drafted premarital agreement can help the parties avoid litigation and a big court fight in the future. An experienced Florida family law attorney should draft the premarital agreement and make sure that all necessary provisions are included in the agreement.

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In many Florida marriages, one spouse controls or has all the finances and the other spouse cannot access funds or resources to pay an attorney a retainer to hire the attorney.This not only happens in affluent areas, like Ponte Vedra Beach and upscale neighborhoods in Jacksonville, but in all communities.

If one spouse has the greater ability to pay a Florida divorce lawyer, the judge can order that spouse to pay your lawyer attorney fees and costs in advanced. A Florida divorce attorney has the discretion whether or not to accept representation on a case. While most attorneys will want a retainer paid up front, some Florida divorce attorneys will take on a case and seek attorney fees from the more affluent and higher earning spouse.

Florida Statute 61.071 provides as follows:
“Alimony pendente lite; suit money.—In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefor. If a party in any proceeding for dissolution of marriage claims alimony or suit money in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefor.”

This Florida divorce law is designed to provide an even playing field for the spouse to have competent representation during a Florida divorce and that one spouse should not take advantage over the other because of money.

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In Florida, it is quite common these days for a home to be underwater or for the mortgage to exceed the value of the home. Even homes purchased 5 years ago are underwater. In a Florida divorce, the starting point for a Judge is to divide the assets and liabilities equally between the parties. When a home has no equity in it since the mortgage exceeds the value, there really is no asset of value that is part of the divorce; however, there is still the issues surrounding the mortgage, payment of the mortgage, use and possession of the marital home, and other issues that come into play in a Florida divorce.

A Florida divorce Judge can order that the home be listed on the real estate market and sold. A Florida judge also has the ability to award the marital home to one party and to effectuate orders as to the payment of the mortgage and other home related expenses.

Some homes end up in foreclosure while others turn into a short sale. The rulings of the Florida divorce judge are not necessarily binding on the mortgage companies and banks. In other words, if both husband and wife are liability under the note / mortgage, the Florida divorce judge cannot remove either husband or wife as a debtor to the bank or mortgage company.

The Florida divorce judge can have one spouse responsible to the other for these deficiencies but the bank will still has the ability and right to pursue either or both parties (husband and wife) for the debt / mortgage. Another way to rid yourselves of the house would be to try and negotiate a quitclaim deed back to the bank to bypass a foreclosure lawsuit if the bank would waive any further actions against you. A Florida divorce lawyer and / or Florida foreclosure defense lawyer can provide you with legal advice and representation in these situations.

If push comes to shove and you qualify, a Chapter 7 bankruptcy will allow you to surrender the house. Both spouses have to agree or again, the remaining spouse may still be liable.

As you can see, there are a myriad of issues when there is a Florida divorce and a marital home that is underwater. Before signing any documents or forming any agreements, it is advisable to discuss the situation with a Florida divorce lawyer, Florida foreclosure defense lawyer, and / or a Florida bankruptcy lawyer.

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In this bad economic time, the husband and wife going through a divorce worry about how the marital debt gets split up (credit cards, medical bills, mortgages, etc.).

Florida Statute 61.075 gives your judge a basic guideline as to how marital debt should be divided. The Florida divorce judge has to balance the husband and wife’s ability to pay, what type of assets they own, and what kind of debts exist. The Florida divorce judge has descretion as to how to divide up assets and assign liabilities to the husband and wife. As a starting point, the Florida divorce judge will split the assets and liabilities equally. This is just a starting point. The Judge will then consider the income of each party, earning ability of each party, education of each party, lifestyle of the parties during the marriage, and many other factors. If there is a disparity between the income of the husband and the income of the wife, there is a good probability that the division of assets and liabilities will not be split equally.

Generally, when it comes to secured debts like the house and mortgage or the car and its loan, whomever gets the property is responsible for the continuing payments. Of course, that is subject to other considerations like money available to each party or alimony awards. Again, the Florida Judge will consider various economic factors of the marriage and each party as well as the future earning ability of each party.

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In Florida, marital assets divided in a divorce according to Florida Statute 61.075

How does one figure out who owns what of the marital assets? The first thing a Florida Family Law judge must do is determine what are actually marital assets. Basically, things and money acquired during the course of the marriage are assets to both the husband and wife. This includes either party’s work salary or income.

If the house was bought during the course of the marriage, it is marital property regardless whose name is on the title. There are many variations and exceptions to this rule. For example, if one person used non-marital money for the downpayment, he or she may be entitled to an offset for reimbursement in divorce.

There are many factors that apply to the Florida Statute and it can be very complicated to figure out.

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Pursuant Florida Statute 61.021, one person of the marriage has to live in Florida for at least 6 months prior to filing for a divorce/dissolution of marriage.

There may be other considerations when discussing this requirement. Did you move out of the state where you were living with your spouse and leave your minor child/children behind ?

Where in Florida can you file for divorce ? Florida has counties that govern which court your divorce will take place in. This is called venue. The divorce must be filed where either the plaintiff or defendant resides or where either is regularly employed or has a place of business.

For more information on Florida Statute 61.021 – Residency Requirements For a Florida Divorce, see the official website for the Florida Statutes.

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