We now offer Virtual Mediations using Enhanced Video Conferencing
Date Posted: January 14, 2022 2:10 am
Divorce involves a bundle of various feelings such as anger, fear, resentment, and disappointment.
Apart from causing emotional distress, divorce has more practical aspects. One of them is the division of marital property.
Before dealing with the issue of marital property division, it is crucial to separate marital property from non-marital property. In short, marital property is property acquired during the marriage. On the other hand, generally speaking, property owned before marriage is considered non-marital property and therefore not subject to division.
Section 61.075 of the 2021 Florida Statutes governs the distribution of marital assets and liabilities. According to this statute, in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal unless an unequal distribution is justified.
Such justification depends on multiple relevant factors, including:
(a) The contribution to the marriage by each spouse. That includes contributions to the care and education of the children and services as homemakers.
The court will always recognize the contribution of each spouse regarding child care. In many cases, one of the spouses is unemployed but invests a lot of time and energy in taking care of the children. There are also many unspecified house jobs performed by the unemployed spouse, without which proper functioning of household would not be feasible. The court pays special attention to giving appropriate weight to such contributions.
(b) The economic circumstances of the parties.
Different economic circumstances of the spouses require an individual approach to marital property division. Sometimes one of the spouses’ non-marital properties is insufficient to support basic life needs. That justifies the unequal distribution.
(c) The duration of the marriage.
The value of marital property largely depends on the duration of the marriage. If the marriage lasted shortly, there might be no marital property subject to division, or its value may be insignificant.
(d) Any interruption of personal careers or educational opportunities.
The fact that one spouse missed a career or educational opportunity can be a proper justification for granting a substantial portion of marital property to that spouse.
(e) The contribution to the personal career or educational opportunity.
On the other hand, the personal growth or educational achievements of one spouse are often the consequence of the sacrifice and contribution of the other spouse. Taking care of children and home affairs while the other spouse is pursuing education or career represents a valid argument in favor of that spouse when distributing marital property.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
Sometimes one of the spouses is interested in keeping business or professional practice intact from claims of the other spouse. The harm from dissolving one spouse’s private business practice can be much more significant than the benefits to the other party. In deciding, the court must weigh all circumstances based on case-to-case analysis.
(g) The contribution to the acquisition or enhancement of the marital property.
Frequently, the enhancement or the improvement of marital or non-marital assets would be impossible without the contribution of each spouse. The court must not neglect that fact when determining whether there is justification for the unequal distribution of marital assets.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage.
In deciding, the court must first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether it would serve other equities to give any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years before the filing of the petition.
If one of the spouses engaged in intentional waste, depletion, or destruction of marital property before filing for divorce, that is a clear justification for unequal distribution. Besides, destruction of property is punishable under criminal law. In that case, a substantial portion of the marital property belongs to the other spouse.
When the marital property distribution dispute arises, the spouses can resolve it in traditional litigation. Instead of financially and emotionally draining court procedures, the spouses can select alternative dispute resolution methods such as mediation.
An impartial third person – the mediator, chosen voluntarily by the parties, seeks to find common ground between the spouses. The mediator is a professional specially trained in marital property distribution.
Mediation consists of multiple talks the mediator conducts separately with each party (caucuses) and the joint sessions in the presence of both spouses and their attorneys.
The mediator facilitates the negotiation, usually resulting in a settlement agreement. After both spouses sign it, the settlement is a binding contract.
One of the most significant advantages mediation has over litigation is its confidentiality. While everything said in court becomes part of the public record, the mediation process keeps marital property details out of public sight.