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When Should Brokerage Accounts Funded With Inherited Money Be Considered Marital Assets And Subject To Equitable Distribution?

October 20, 2015 by  
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In a Divorce case the court determines what assets and liabilities are marital and which are not and equitably divides the marital assets and liabilities.  The Third District Court of Appeals just entered an opinion in the case of Gromet v. Jensen reversing the trial court for its decision to consider three brokerage accounts funded with inherited money to be marital and subject to equitable distribution. 

Of the three brokerage accounts, one  had been established prior to the marriage and the two others that had been established during the marriage.  All three had been funded  by the Husband with money inherited from his mother.  Inherited money usually starts of as being non-marital. 

The Wife claimed that the brokerage accounts were marital because the Husband had deposited about $1,100 from the dissolution of a marital business into a brokerage account and because the Husband had expended marital efforts and labor in his management of the accounts such that any enhancement in value should be considered marital.

The Husband claimed that while he had managed the accounts during the marriage they had actually decreased in value because of trading losses and the use of funds to maintain the marital household.  The Husband also testified that the had not deposited the $1,100 from the marital business into any of the three brokerage accounts having deposited it into a separate bank account.

The Third District Court of Appeals considered the testimony, evidence, and law in detail coming to the conclusion that the three brokerage accounts were not marital on the record before it.  It reasoned that the Wife had not specified which brokerage account the $1,100 had been deposited into and did not have specific knowledge regarding the accounts such that the evidence before it was insufficient to find commingling had occurred based upon the vagueness of the Wife’s testimony and evidence concerning the deposit.

The Court then considered the Wife’s enhancement in value argument.  The Court reasoned that while the Husband had actively managed the accounts during the marriage the Wife had failed to meet her burden to show an enhancement in their value had resulted from it, and that the evidence of record actually supported that they had decreased in value. Accordingly, the Wife was not entitled to any portion of the three accounts.

This case shows the importance of properly preparing for trial and presenting the right evidence to the trial court.  Had a different record been established at trial through documents or testimony the outcome may have been completely different.  For instance a bank record showing the deposit of the $1,100 into the initial brokerage account which was then used to fund the other two may have affected the court’s consideration of whether the accounts had become marital through commingling.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, valuation under the law,  and presenting the legal arguments and evidence to the court to support your position, contact our office to arrange a consultation on (786)539-4935

 

 

Court Should Not Have Made An Unequal Equitable Distribution Of Marital Assets Based On The Husband’s Superior Ability To Earn Income Without Considering Other Factors

September 4, 2015 by  
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In Kyriakou v. Kyriakou, the Second District Court of Appeals held that the trial court should not have made an unequal equitable distribution of marital assets based on the Husband’s superior ability to earn income alone and without considering the other factors listed in the statute as disparate earning capacity alone should not form the sole basis for an unequal equitable distribution.  

The Appellate Court also took issue with the lack of findings on the record to support the categorization and valuation of the parties assets and made clear that if a judgment is being based on the dissipation of marital assets there must be evidence of it and specific findings of misconduct.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property, its valuation under the law, the dissipation of assets, misconduct, and presenting the legal arguments and evidence to the court, contact our office to arrange a consultation on (786)539-4935

 

Court Should Not Have Classified A Business Established During The Marriage As Non-Marital

September 4, 2015 by  
Filed under Uncategorized

 

 

In Niekamp v. Niekamp, the Second District Court of Appeals held that the Wife’s music studio business which was established during the marriage should not have been classified as a non-marital asset.  Instead, it should have been classified as a marital asset and valued for the purposes of equitable distribution excluding the goodwill due to the involvement of the Wife in the business.

For equitable distribution purposes in a divorce, assets and liabilities need to be classified as marital or non-marital, valued appropriately under the law based on evidence presented and divided accordingly.  It is important to understand the applicable law regarding classification and valuation and present the right evidence if the correct result is to be obtained.

If you need to talk to a lawyer or attorney about your divorce, the division of assets and liabilities, the classification of marital and non-marital property and its valuation under the law contact our office to arrange a consultation on (786)539-4935

Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.