What is Marital Property in Florida?

Florida is an equitable distribution state when it comes to divorce, which means the assets and liabilities of the couple are divided fairly, although not necessarily equally. One of the key concepts of property division in Florida divorces is that only marital property is divided, so it is important for anyone going through a divorce to understand what is considered marital property, and what the courts will deem as non-marital property. The distinctions are not always as clear as they sound, and it can often become confusing for divorcing couples.

Marital Property

Generally speaking, marital property is considered any property the couple acquired together during the marriage. However, there are other types of property the court may also deem as marital property during property division hearings. These include:

• Non-marital value that has appreciated in value: In some cases, a person may bring non-marital property into the marriage and the couple improves it or enhances it so it becomes greater in value. For example, one spouse may have a business of their own when they enter the marriage. During the marriage, both spouses work on the business to increase its value and so, it then becomes marital property.
• Spousal gifts: Spouses often give each other presents during the marriage and regardless of what funds were spent on it, these are typically considered marital property.
• Retirement savings: Retirement savings are some of the trickiest assets to divide during a divorce. Any savings that were accrued prior to the marriage are usually considered non-marital property. However, any additional funds or even interest collected on retirement savings are typically considered marital property.

Non-Marital Property

Non-marital property, also sometimes referred to as separate property, typically includes any assets or liabilities a spouse brought into the marriage. Again, there are exceptions to this and they include:

• Inheritances: When one spouse receives an inheritance from another family member, it is typically considered non-marital property, even if the spouse received it during the marriage.
• Income obtained from non-marital assets: The income derived from a non-marital asset, such as a separate rental property, is usually deemed to be non-marital property when the spouse has kept all income separate from marital funds.
• Assets included in a premarital agreement: As long as a premarital agreement is deemed fair by the courts, any assets included within the contract are considered non-marital property as the agreement dictates, regardless of their classification under Florida law.

Our Florida Family Lawyers will Protect What is Yours

Property division in Florida can quickly become confusing, as it is sometimes difficult to differentiate between marital and non-marital property. At All Family Law Group, our knowledgeable Tampa family law attorney will help determine what assets are yours, and what is subject to property division. We always work in the best interests of our clients and will fight to protect what is most valuable to you. Call us today at (813) 672-1900 to schedule a free consultation and to learn more about how we can help during your divorce. Se habla Español.

Weighing Annulment vs. Divorce

When couples contemplate ending a marriage, rarely does the thought of asking for annulment, instead of divorce, occur to them. While most people have some vague idea of what annulment means, many associate it with a religious procedure intended to erase the marriage. Religious-based annulments certainly exist, but are wholly separate from the civil process that goes under the same name. The key difference between divorce and annulment is that an annulled marriage is treated as if it never existed, and a divorce simply dissolves a legally-valid union. People do opt for a civil annulment for religious reasons, but also seek this alternative to divorce to avoid extending certain benefits that former spouses are entitled to in divorce, such as property distribution. Compared to divorce, annulment is a complicated and more costly procedure that brings no guarantee a court will grant it. That being said, it may be the right choice in certain situations, and understanding how the law and courts treat these kinds of requests will allow individuals considering whether to end their relationship to make an informed decision.

Grounds for Annulment

One important point to understand about annulment is that, unlike divorce, there are no statutes addressing this subject. Thus, all the law on this issue is based on past court decisions, which means judges have wide discretion in deciding annulment cases, and the outcomes are very uncertain. However, looking at past judicial trends, certain claims for annulment are more likely to be accepted than others, including:

• The marriage was a sham or fraudulent. This occurs if one party agrees to marry to gain a certain benefit, such as immigration status, public benefits, health insurance or greed. To claim a marriage is fraudulent requires one spouse to be innocent of the other party’s motives, and usually requires the marriage to fail shortly after its creation.
• There was no consummation. If consummation of the marriage did not occur, courts have accepted this reason to justify annulment, but it must be sought relatively early to have any chance of succeeding. Waiting years to annul a marriage is likely to preclude this option.
• The marriage was illegal from the start. Illegality of a marriage can be based on age, one party being already married, or the incapacity of a spouse at the time of the marriage. In this situation, courts are likely to grant an annulment because the marriage was never valid. The more compelling the evidence, the easier it is to convince a judge the marriage should never have taken place.

Spousal Rights

Marriage confers specific rights on both spouses that make a significant difference in divorce. The rights of a party in a divorce are spelled out in Florida statutory law, but annulment, as mentioned above, has no set laws governing its application. From a practical standpoint, courts can and will divide property in an annulment proceeding since there is likely to be some commingling of property, but the court is not required to use a particular standard to decide which party gets what. Consequently, if possible, it is best for the parties to form an agreement on property division privately so there is more control over the outcome. In addition, Florida law automatically dissolves certain trusts, insurance beneficiary designations, and provisions in wills as an aftereffect of divorce. Annulment typically brings the same type of effect, but an experienced family law attorney should be consulted to ensure the financial aspects of the annulment are handled properly.

Talk to a Florida Family Law Attorney

Making the decision to end your marriage is never easy, but working with a family law/divorce attorney can make the process more manageable. The Tampa Bay law firm All Family Law Group, P.A. understands how overwhelming this transition can be, and will work to keep you informed about the legal process and options.  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+

Pets Matter in Divorce

Why Pets Matter In A Divorce

‎Saturday, ‎November ‎17, ‎2012, ‏‎3:18:24 PM | Silvana D. Raso

 

Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, turtle or gerbil. For these owners, the pet is an integral part of the family. But owner beware: in my experience as a divorce attorney, the pet that you love and cherish on can easily be taken away from you in an instant if you are involved in a nasty divorce.

According to a quarter of respondents in a 2006 survey by the American Academy of Matrimonial Lawyers, pet custody cases have increased noticeably. So who gets Fido? If you think you are entitled to your pet because you think you love him/her more, you're barking up the wrong tree.

Your pet may be considered a member of the family but the courts think otherwise. In divorce cases, the harsh reality is that pets are treated as another piece of property that is being divided in the eventual settlement. Other factors such as veterinary bills, "visitation" rights to the pet, and miscellaneous expenses can turn a nasty divorce into a toxic one.

The best solution for you, your future ex-spouse and your pet is to settle custody and visitation privately to avoid having someone else with no emotional connections decide your pet's fate for you. How the custody is determined can vary greatly too. A judge in one case threatened to put a cat in the middle of a room and grant custody to whichever spouse the cat ran toward. The couple ended up determining custody privately.

Some couples cannot stand the thought of dealing with their ex and put the decision in the hands of the court. Before taking this leap though, here is what will be taken into consideration in a judge's decision:

Ownership: If one spouse owned the dog before the marriage, the dog will typically remain with that spouse when the marriage goes sour.

Primary care : If you are the one feeding your cat, walking your dog, cleaning after your fish or reptile, and can prove that you perform these tasks, then there is a better chance that the pet will remain with you. Additionally, if one spouse is never home due to a busy work or travel schedule, the other spouse is in a better position to claim the pet.

Best interests of the children: If a couple has children, the pets will go where the children go to prevent any further loss, pain or heartache.

Prenuptial agreement: If it was determined in your prenup who would get your pet in the event of a divorce, then there is no argument as to who Fido is going home with.

Remember, the court may not see your pet as a family member but you do. So when you introduce a pet into a marriage, consider all that is stake in the event of a divorce. Not only will you have a happier ending, but Fido will keep his tail wagging too.

Silvana D. Raso heads the family law practice at Englewood Cliffs, NJ-based Schepisi & McLaughlin, P.A. where she counsels clients in all areas of matrimonial and family law, including pet custody.