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In A Divorce The Court Must Address Whether Assets Are Marital or Nonmarital For Equitable Distribution Purposes

December 22, 2015 by  
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In Goldman v. Goldman, The Fifth District Court of Appeals for the State of Florida ruled that it was error for the trial court not to have designate whether the wife’s checking account and certificate of deposit, both of which were in wife’s name, were marital or nonmarital property for the purposes of equitable distribution.  The wife had argued that the assets were nonmarital while the husband had argued that they were marital.

In its final judgment, the trial court stated that “[e]ach party shall be entitled to the sole and exclusive use and possession of the checking/savings, money market, CD and cash accounts in their respective names.”
 
However the Fifth District Court of Appeals found that this was not enough.  “Under the equitable distribution statute, the court must categorize the parties’ assets as nonmarital and marital.” Knecht v. Knecht, 629 So. 2d 883, 886 (Fla. 3d DCA1993) (citing § 61.075(1), Fla. Stat. (1991); Robertson v. Robertson, 593 So. 2d 491, 493 (Fla. 1991)). Because the record was not clear whether the trial court determined that these two assets were the wife’s nonmarital property, or instead, made an unequal distribution of marital assets, the decision was reversed for the trial court to provide clarification.

 

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

 

 

Florida’s Fourth District Court Of Appeals Weighs In On Prenuptial Agreements And Interspousal Gifts

September 4, 2015 by  
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In Hooker v. Hooker, the Fourth District Court of Appeals held that where the Husband purchased two properties with funds that could be traced to his premarital assets, which were kept separate by the parties’ prenuptial agreement, and the prenuptial agreement provided that any appreciation of those assets would remain separate, the only way the Wife could claim an interest in either property was by interspousal gift.

The Court then considered whether an interspousal gift had been made in regard to either of the two properties.  With respect to the property that constituted the parties’ primary marital residence through the majority of marriage and was the  site of a business in which the Wife was extremely involved, none of the facts found by trial court evidenced a clear and unmistakable intention on part of Husband to make a gift.

With respect to a second home, the facts evidenced that there had been an interspousal gift so the Wife had an interest in that property.  The court held that there was intent, delivery or possession, and surrender of dominion and control.  The Husband bought the property in a location where the Wife wanted to live, told the Wife the home was for both of them, and sent the Wife a card for their wedding anniversary with a picture of the property.  The Wife purchased  furnishings and incidentals for the home from her separate funds.  Delivery was made at the time the Wife obtained keys to property to use as her summer home.  The Wife then had unfettered access to the home and made decisions on the care and maintenance of property. The Court also held that appropriate findings had been made under the statutory factors for there to be an unequal equitable distribution of the parties interest in the property.

If you need to talk to a lawyer or attorney about a prenuptial agreement, your divorce, the division of assets and liabilities, the classification of marital and non-marital property, its valuation under the law, unequal equitable distribution, 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 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  
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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.