How Courts Treat Spousal Gifts in Divorce

Exchanging gifts with friends and family is a traditional way to show how much one cares, and even before marriage, exchanging gifts between spouses is common, even expected to some extent. When the relationship is good, the effort and expense of obtaining and sharing gifts between spouses are not given a second thought. However, when the marriage is no longer viable, and one or both spouses seek to divorce, items given as gifts take on new significance in the division of property. One could reasonably assume that gifts would not be considered a marital asset since they are freely given and nothing is typically expected in return. However, the law does not view gifts between spouses in this manner, and considers all gifts exchanged during the marriage as marital assets. The difficulty comes when some assets are not easily labeled as marital or non-marital. The Florida Supreme Court recently weighed in on how courts should assess whether particular properties are spousal gifts for purposes of property distribution, and found that two properties owned by the husband, but used only as the family’s residence, count as gifts to the wife.

Marital vs. Non-Marital Property

Assuming the spouses cannot mutually decide how to divide property, Florida law calls for the court to determine an equitable/equal division of all marital assets and liabilities. Judges are permitted to deviate from the equal division standard if such a result would be unfair, but divorcing couples should generally expect to split everything with the other spouse down the middle. In order to distribute the assets and liabilities between the parties, it is first necessary to identify what qualifies as marital and non-marital property. Marital property includes:

• any asset or liability obtained during the marriage by either spouse individually or jointly;
• non-marital assets that increased in value due to the efforts of the spouses or from the expenditure of marital funds/assets;
• gifts between spouses; and
• any interest in vested and non-vested pension funds, retirement accounts, insurance policies, annuities or other deferred compensation program.

In addition, any real or personal property jointly owned by the spouses, regardless of when it was acquired, is automatically considered marital property. This assumption may be rebutted with strong evidence to convince a court to classify it as non-marital.

By comparison, non-marital property includes any of the following:

• assets or liabilities acquired before the marriage by either spouse;
• assets acquired by a spouse individually through inheritance or via gift from a non-spouse;
• income earned from non-marital assets unless the income was treated as a marital asset; and
• assets and liabilities excluded from the marital estate under the terms of a prenuptial or nuptial agreement.

Spousal Gifts

When considering what items could count as a spousal, it is necessary to look at everything from jewelry given on an anniversary to the car bought to mark a milestone birthday. The key issue with spousal gifts is figuring out if the item actually qualifies as a gift. It is does not, it could potentially be classified as non-marital property, and thus, not subject to division in divorce. Legally speaking, for an item to meet the criteria for a gift, the transfer by a spouse must:

• be intentional;
• be immediate;
• relinquish all control over the property to the receiver; and
• be accepted by the other spouse.

If any of these elements are missing, an argument could be made the property was not a gift, and instead, should be considered a non-marital asset.

Get Legal Advice

Your financial future is tied to the property distribution settlement in your divorce, so you want to make sure it is fair and that your rights are properly represented. The Tampa Bay law firm, All Family Law Group, P.A., understands how complicated property division can be, and are ready to answer your questions and concerns.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Figuring Out Property Division in Divorce

Part of a couple’s effort to build a life together includes acquiring property that speaks to the couple’s success and affection for one another. The longer a couple is married obviously affects the variety and amount of property they own together, and will represent the couple’s hard work and sacrifice. Having to split these assets during divorce is often a hard reality for parties to accept, but absent a prenuptial agreement, some amount of property division will occur. When people typically think about dividing property in divorce, houses, cars, and retirement benefits are the first things that come to mind, but any asset of value can fall within the definition of marital property, including more personal items like books and artwork. While the parties are always free to craft their own property settlement, a court will review the terms for fairness, and, in the absence of an agreement, divide all marital property according to the rules of Florida law.

Equitable Division

Property division in divorce starts from the premise that all marital property should be divided equally between the spouses, unless there is evidence that justifies an unequal division. Examples of issues that could impact the balance of property division are adultery and dissipation of assets by one spouse. Courts evaluate whether equal distribution is appropriate on a case-by-case basis, and use a number of factors to complete this analysis. These factors include:

• the contributions of each spouse to the marriage, including childcare and household services;
• the length of the marriage;
• the economic resources of each party;
• interrupting educational or career pursuits of one spouse for the benefit of the other spouse;
• the contribution of each spouse to increases in value of marital property, and the accumulation of liabilities; and
• the wishes of either spouse to keep the family home for the benefit of a minor child.

Note that both assets and liabilities are divided in divorce, but if one spouse is mainly responsible for the accumulation of debt, the court could leave him/her with the bulk of these obligations.

Marital Property

Now that there is a basic understanding of how property is divided, the next important piece in this issue is figuring out which property is subject to distribution. As noted above, all marital property is divided in divorce. Marital property includes:

• all assets and liabilities acquired by either spouse during the marriage;
• non-marital property that increased in value during the marriage due to the efforts of either spouse or the use of marital funds;
• gifts between spouses during the marriage;
• all vested and unvested benefits and interests in retirement funds, life insurance, and pensions;
• real property jointly owned by the spouses; and
• personal property jointly owned by the spouses.

Determining whether an asset qualifies as marital property is fairly clear in most divorce cases, but one area that may be less clear is interspousal gifts.  All gifts received from a spouse are automatically labeled as marital property, but the law permits a party to dispute this assumption by presenting “clear and convincing” evidence to the contrary. This standard of proof requires a party to present enough evidence that shows his/her contention is more likely true than not.

Retirement Plans

Finally, given the importance of retirement plans in a person’s overall long-term financial stability, it is natural to wonder what happens to these assets following divorce. Any interests or benefits in these funds that accrue during a marriage are considered marital assets and subject to distribution. In addition, military benefits amassed by active military personnel are also open to division if the marriage lasted 10 years or more.

Talk to a Florida Divorce Attorney

If you are in the midst of getting divorced and have questions about which property you are entitled to receive, talk to a divorce attorney to learn your rights. There are many legal nuances not covered here that affect how property is divided. The Tampa Bay law firm All Family Law Group, P.A. has extensive experience in all facets of divorce cases, and can help you receive a fair property settlement.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Top Five Ways to Make Your Divorce Easier

Divorce can be one of the most difficult times in your life – it can take its toll on you emotionally, physically, and financially. In fact, there are few things in life that can create more stress and disharmony than a divorce. When a family comes apart, there are many different feelings that you are likely working through. However, working through a divorce doesn’t have to be traumatic. In fact, you should consider trying these five actions that can help make the divorce easier for you and your family.

Stay Focused

It is important to focus on getting through your divorce, no matter how tough it may seem to be. An experienced divorce attorney will help guide you through the process and keep your uncoupling on track. You can count on your attorney to handle the legal details of your divorce while you focus on emotional healing, and on rebuilding your life. A stalled divorce can be difficult for everyone, so keep the process moving along.

Be Fair

In Florida, any asset acquired during the marriage is considered marital property, and therefore must be divided equitably between spouses in a divorce. It will typically do little to properly resolve your divorce when parties are being unfair. Unfairness will be met with pushback, and the result will be a lengthy, difficult, and tense divorce. Trust in your attorney and their ability to handle even the most difficult of disagreements.

Think of the Children

If you are having a tough time with the divorce, consider what the children may be going through. Your children need to be loved and protected during this difficult time. Be aware of doing anything that could emotionally damage. Remember to keep your children out from the middle of the spousal disagreements. Set up a stable “new normal” for your family that includes them spending time with your former spouse.

Avoid Negativity

It is important to keep a positive attitude as much as possible. Negativity will only become a distraction and can add to your stress as well as the stress of your family. Avoid any temptation to lash out at your spouse and do not try to trash him or her to others. You both know how to push each other’s buttons, but keep in mind that you do not have to respond, especially when it serves no helpful purpose.

Seek Counseling

There is nothing heroic about getting through a divorce alone. Sometimes, the best thing you can do for yourself, and your children, is to seek counseling. The sooner you begin to deal with your feelings, the more quickly you will be able to move on from the relationship and find happiness. While counseling may not have worked for you and your spouse as a couple, you are now free to work through your own emotions, which will help you get past the divorce so you can go forward. If your children seem to be having a hard time with the changes, you may also want to take them to counseling.

If you are about to go through a divorce don’t do it alone. Contact the Tampa divorce attorneys and bankruptcy lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Who Keeps the House in a Divorce?

Divorce is never easy but it can become more complicated with there is property at stake. The home is a place that should be considered a safe haven, yet it could become a sticking point in a divorce settlement. In Florida property and assets that were acquired during the marriage are considered marital property and are to be divided equitably between spouses. All too often, couples disagree about what to do with the home after the divorce. The situation can become more complex if the couple bought the home together prior to getting married.

Equitable Property Distribution

Equitable property distribution means that both parties must split their assets and property so that both receive the same value in the settlement. There are some considerations that may be given to how property is divided but in most marriages, especially with couples who have been married a long time, the split is approximately equal. The marital home is just one part of the property owned by the couple that must now be divided. There are several options that are generally available:

• One spouse may buy the other out and own the home. This requires that the spouse relinquish other assets that total half the value of the home;
• The couple may sell the home and split the profits; or
• Both parties may continue to own the home together until a later date. In this case, the person living in the home may need to pay rent along with a share of taxes and maintenance costs.

The choice to sell the home may be a difficult one but ultimately may be the best option, particularly if the divorce is acrimonious. In situations where there are minor children living in the home, the couple may decide that it is best to allow them to stay in the home with one parent so they can continue to attend the same school and keep the same friends and activities.

Preparing for Divorce

If you own a home, or other property, there are a couple of things that you must do immediately when you decide to divorce. If the home is mortgaged you will need to determine the amount that is still owed on the home as well as how much equity you have in the home. Divorcing couples must find out the current value of the home. This is best accomplished by having an appraisal completed. Once you know what the home is worth you can determine the amount of equity you have in it. This will help couples make the decision as to how to proceed. For example, if you owe more than the home is worth it may be advantageous to keep the home until the market value increases and you have more equity in the property.

How a Divorce Attorney Will Help

Couples in Florida are encouraged to come to an agreement as to the major divorce settlement terms. This is often done with help from an experienced Tampa divorce lawyer. Your attorney guides you through the process and works to assist when there are disagreements. You will learn what your options are when it comes to your home so you can make the decision that is best in your situation. Some divorces are more complex than others. Count on your attorney to answer your questions and work to achieve a fair and equitable divorce for you and your family. Contact the Tampa divorce and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

What’s Mine is Mine…Right?

One of the standard tasks in any Florida divorce involves separating the couple’s property. In some cases, the parties are able to accomplish this by agreement; that is, they determine themselves which one of them will take a particular piece of property. Where there is no agreement, the judge hearing the divorce action will make this determination. Dividing property between two divorcing spouses is not as simple as finding out to whom a particular item belongs, however. Property division can be complicated and require the assistance of an attorney.

The Basic Goal of Property Division

In a Florida divorce, the goal of a division of the property is for both parties to be awarded a fair and equitable amount of the marital estate or marital property. “Marital property” includes all property that was acquired by either of the parties during the course of the marriage, regardless of who actually “earned” it. So for instance, a wife who uses her income from her job to purchase two cars for the family has purchased “marital property.” If the couple later divorces, the cars are subject to division by the court because they are considered marital property, even though the wife purchased this property herself.

The division of property must be “fair and equitable” – that is, both parties must be treated fairly. This does not always result in an even 50/50 split of the marital property. In the example above, if one car is valued at $12,000 and the other at $15,000, it may be fair and equitable for each party to receive one of the cars in the property division.

Where Problems Arise in Property Division

In certain cases, property that is clearly yours can be subject to division as “marital property.” The assistance of an experienced family law attorney would be necessary to help you protect what is yours. For example, an inheritance you received prior to the marriage would typically remain your property after the marriage as it would be considered “non-marital property.” But suppose the inheritance is substantial (assume $100,000 for purposes of this example) and you deposit this money into a joint bank account used to pay your bills. Or you add your spouse as an authorized user to the bank account where this money is on deposit. In either case, the court may consider your inheritance to be marital property, which would subject it to division by the court at the time of the divorce.

How Can I Protect What is Mine?

The team of Tampa Florida divorce attorneys at All Family Law Group can help you protect your property before, during, and after a marriage. One way is by drafting and entering into premarital or antenuptial agreements, wherein each party agrees who will receive what property if a divorce occurs. We can also advise you how best to separate your property so that it is not lumped together with and considered as marital property. Contact us today at (813) 321-3421 for a free consultation to learn how our Tampa Divorce Lawyers can help you keep what is yours.

By Lynette Silon-Laguna Google+