Tampa Family Law & Mediation

EQUITABLE DISTRIBUTION

Although alimony and child support are continuing obligations that may be modified in the future based on changed circumstances, the parties to a divorce proceeding only get one chance for a fair division of marital assets, which is known in Florida as “equitable distribution.” 

To achieve optimum results, you need lawyers like Richard Mockler and Angela Leiner who are experienced in parsing the nuances of Florida divorce law, finding assets, tracing funds, forensically valuing companies, and spotting value through federal tax considerations.

Fairness Factors

Florida law creates a presumption that a fair division of marital assets means an equal division of such assets.  Certain circumstances may justify an “unequal” division, such as where one spouse contributed more to the family than the other, or where one spouse sacrificed a career to help the other succeed.  Courts consider the following factors in dividing marital assets:

• Duration of the marriage

• Contribution to the marriage by each spouse

• The economic circumstances of each spouse

• The contribution of one spouse to the career of another

• The desirability of retaining an asset intact instead of dividing it

• The contribution of one spouse to the enhancement of another asset

• The desirability of keeping the family home as a residence for the children

• Intentional dissipation or waste of assets by one spouse

• Credits or setoffs due to payments made during the divorce litigation

• It is important to remember that “non-marital” assets are not divided in a divorce. Assets acquired prior to marriage are usually non-marital. Assets acquired during the marriage but with non-marital funds that are solely titled in one spouses name continue to be non-marital. Gifts or inheritances to one spouse only will be non-marital.

Marital Versus Non-Marital Assets

By definition, non-marital assets are exempt from equitable distribution. 

Assets acquired before marriage are usually deemed non-marital.  Assets acquired during the marriage using non-marital funds (and which are solely titled in one spouse’s name) are also non-marital, as are gifts or inheritances given solely to one spouse.  By contrast, an asset that is purchased with marital funds (i.e., income of either spouse during the marriage) is deemed marital.  Assets there were non-marital but have since been jointly titled or commingled with other marital assets can become marital assets.  For example, a home that was solely titled and purchased before marriage by one spouse but that was refinanced during the marriage and titled in both parties’ names becomes a marital asset. 

Some assets are partly marital and partly non-marital.  For example, a 401K that was funded prior to marriage, but that was contributed to during the marriage, will have a marital component and a non-marital component.  We employ expert accountants to analyze these components and the proper division of any appreciation in value.  Similarly, a house purchased before marriage and still titled in one spouse’s name will be treated as a non-marital asset; any appreciation in the value of the house, however, due to the expenditure of marital funds or labor will be considered a marital asset that is subject to division.

How to treat the marital home, and whether to request that the Court order a sale and distribution of the equity, are important pre-filing considerations in every divorce.

Tax Considerations

It would be naïve to consider any proposal for equitable distribution without analyzing the potential federal income tax consequences.  Fortunately, Richard Mockler has a Master of Laws Degree in Taxation and understands the federal tax code.  Richard will use his skills to help you structure your divorce settlement advantageously and avoid unnecessary negative tax consequences.

Litigation Over Hidden Assets

We have spent many years dealing with parties who were unwilling to disclose their true assets. Richard Mockler spent the first half of his career defending executives and large corporations against allegations of fraud, breach of fiduciary duty, and other financial wrongdoing.  These cases involved millions of pages of documents, complex financial instruments, and labyrinth transactions.  Richard previously worked for Holland & Knight's Securities Litigation Group and for the Miami office of the venerable and prestigious Wall Street law firm, Stroock & Stroock & Lavan.  We can use these skills and Mr. Mockler's experience to help in your family law case, especially where one of the parties is playing "hide-the-ball" with assets, accounts, or valuation.

If you or someone you care about is facing a divorce, one of our Tampa divorce lawyers can help.  Please contact us today at (813) 331-5699 to speak with one of our experienced family law attorneys.

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