Representing yourself in a Florida divorce is possible if you have correct information about your rights, the law and court procedures. You need to get it right the first time. Changing a Final Judgment is not always possible. If you make a mistake it can cost thousands of dollars for attorney's fees to fix it. This article will provide you with information about your property rights in a Florida divorce.
If you don't educate yourself about your rights, you could agree to accept much less than what you are entitled to. One recent divorce forum had this posting:
When I got divorced I didn't fight for his business. He makes $ 200k / yr and I've been a stay at home mom. I had a premarital IRA but I cashed it in when his business needed money. Now I get 2k / mo alimony but I want to buy a house and don't have enough money. Someone told me that if I have my boyfriend move it, I'll lose my alimony. Help!
By not including the value of the marital business in Equitable Distribution, this woman shortchanged herself and her children. Now she's in distress. Don't let that happen to you.
Is There a Formula for Equitable Distribution?
"Equitable Distribution," Florida's property division process, starts with a 50/50 split of marital assets and debts, but in some situations an equal split may not be fair or equitable. There is no set formula for unequal splits. For example, one of you may decide to take more of the assets along with the loans on those assets because you can afford to do so. Unequal splits are unusual when cases go to trial.
Florida courts have ordered unequal splits when
- One spouse is disabled and the other is employed
- One spouse is needed to care for a disabled child
- One spouse spoke little English, had no formal education and never worked
- One spouse hasn't worked for years, the other is nearing retirement
As you can see, the situations for unequal distribution are not typical situations. Since Florida law starts with a 50/50 split of "marital assets and marital debts" and unequal splits are unusual, most couples will use the 50/50 formula.
What is "Marital?"
" Marital property" or "marital assets " include anything you spent money on during the marriage and still have – things like houses, cars, boats, televisions, dishes. Your "stuff" is called personal property. If you own property / house / dirt, it is called "real property."
" Marital debts " or " marital liabilities ," like marital assets, are the loans you signed for during the marriage – things like mortgages, student loans, credit cards. With a few exceptions, everything you get or borrow is "marital" from the time you said "I do," until you sign a Marital Settlement Agreement or file the Petition for Dissolution of Marriage, whichever comes first.
If property is titled only in one spouse's name, it may still be marital property if purchased with marital money. For example, some couples each have a car in individual names. If those cars were bought / leased during the marriage, they are "marital assets." Even some non-marital assets can become marital as discussed below. The forum writer missed this opportunity in her case.
Your first step is to list all your marital property on a chart. Show its current value, what and who you owe for it. Make a column to show who is on the title or deed and another to show which of you will receive each one in the divorce. This is time consuming but it will give you all the information you need for the Financial Affidavit and your trial or your Marital Settlement Agreement.
When making your chart, if you own real property, have credit card debt or other recorded loans, have any joint property, you need to list all your property (include all the owners) and all your debts with some identifying information for them. With concerns over identity theft, show only the last 4 digits of your loan and account numbers in the Financial Affidavit or Marital Settlement Agreement. For the real property, give the address and the complete legal description from your deed on a sheet labeled with your name and case number, if you have one already.
Non-Marital Means It's Mine, Right?
Well, maybe. Non-marital assets and liabilities belong only to one of you and aren't divided in the Equitable Distribution process. There are five categories of non-marital assets / liabilities under Florida law:
- Assets or liabilities you had before the marriage.
- Inheritances and other gifts, even during the marriage.
- Any income received from non-marital gifts unless you relied on or used that income as a marital asset.
- Assets defined as non-marital in a written agreement (pre nuptial or post nuptial agreement)
- A liability obtained by forgery of one spouse's name by the other spouse. The forging spouse is responsible for that liability.
In deciding Equitable Distribution, a court will only consider "marital" assets and liabilities. Non-marital assets come into play primarily with alimony determinations.
Be careful. "Non-marital" can become "marital." When you have non-marital assets / liabilities but mix them with marital assets, by depositing your inheritance check into a joint marital account for example, you may have "co-mingled" these assets so that they aren't considered non-marital anymore . The forum writer changed her non-marital retirement account into a marital asset when she used it in the family business.
Another non-marital / marital problem can arise when you have used your non-marital asset to generate money during the marriage. For example, you owned a house with a mortgage before you got married. While married, you used you paycheck to pay the taxes and some of the mortgage. When you rented the house after your marriage, you deposited the rent payments into a joint marital account. There is a special formula for giving you credit for your original investment. This area can be a minefield and you will want some professional advice if the two of you can't decide on a fair way to divide co-mingled property.
It is possible to represent yourself in a Florida divorce. To be sure that the marital property and debt are divided fairly, you need to know what property is "marital" and what its value is. Making a chart of all your property will help you in the Florida divorce process and will make calculating the equitable distribution or property division easier.