Equitable Distribution

Equitable distribution can sound like an easy concept.  Don’t let the name fool you.  “Equitable” doesn’t always mean “even,” and equitable distribution is one of the most important aspects of your divorce case.  It involves both your assets and your debts, and it can affect alimony and other issues.  What happens to the assets and debts of your marriage can have lifelong implications.  

Equitable distribution in a divorce is the division of marital assets and marital debts.  We’ll explain in a minute how the assets and debts get divided, and how you could try to maximize the settlement you receive in the divorce.  By “maximize your settlement,” we mean receive the most assets and take on the least amount of debt as possible.  

A prenuptial agreement (also called a prenup or ante-nuptial agreement) can alter the general information set forth in this article about division of assets and debts.  We have an entire article devoted to prenups, so feel free to read all about them.

Marital assets are all assets acquired by the husband and wife from the date of the marriage until the date the divorce is filed.  It doesn’t matter if the assets are titled in only one spouse’s name.  It doesn’t matter if one spouse never worked a day in their life.  Without a prenuptial agreement, for the husband and wife what’s yours is mine and what’s mine is yours.  The law presumes that any asset acquired during the marriage is marital property.

Pre-marital assets are assets that one spouse owned before the marriage.  If a pre-marital asset remains a pre-marital asset and is not commingled with marital assets, the spouse who owned it before the marriage usually keeps 100% of that per-marital asset.  This area of the law gets extraordinarily complicated, especially when it comes to houses and inheritances.  This is discussed in detail later in this article.

Non-marital assets are assets that one spouse acquires during the marriage that are not marital in nature.  Almost everything acquired during the marriage is a martial asset.  So, by definition, non-marital assets are uncommon in the world of divorces.  One of the more common types of a non-marital asset is an inheritance.  But an inheritance, like any non-marital asset, can lose its non-marital status and become a martial asset if it is commingled with a marital asset.

If you and your spouse cannot agree how to divide the marital assets, then they are ordinarily divided by the judge about 50/50, unless there is a legal reason why they should not be divided about equally.  The judge is instructed by the Legislature to “begin with the premise that the distribution should be equal.”  The judge usually does not take everything and literally split each item in half.  Normally, the judge will hear testimony and take evidence about the value of each category of marital assets, add up the total value, subtract the total value of marital debts, and then try to make it work so that the total picture after divorce is about 50/50.  Now, there are exceptions to the 50/50 rule, and we will discuss that a little later on.

If you and your spouse can agree to the division of all or some of your marital assets, and if a proper, legally binding settlement agreement is drawn up, then you can amicably settle your divorce as it relates to those marital assets.  What’s nice about this is that you and your ex can decide for yourself who gets what, and it doesn’t necessarily have to be 50/50.  Maybe you have a sentimental collection of dolls, and they are worth much more to you than their “book value.”  So you may be willing to let your spouse have the tools which are technically worth a bit more than your dolls.  Or, one spouse may take on more than 50% of the marital debt in exchange for more than 50% of the marital assets.  Another common situation is in lieu of alimony, one spouse would receive more than 50% of the marital assets (or the spouse who is avoiding alimony may take on more than 50% of the marital debts).  Remember, when it comes to equitable distribution, if you and your spouse can agree to it, we can most likely get the judge to sign off on whatever you agree to.

There are times when a judge can make an unequal distribution of marital assets and debts.  But, keep in mind, the judge is supposed to start with the assumption that the split should be about 50/50.  In the vast majority of cases, the judge does not find a reason to make the split anything other than about equal.  There is a whole list of factors the judge can consider when asked to make an unequal distribution of marital assets and debts.  They include:

a.  the contribution to the marriage made by each spouse—  this can include contributions made by one spouse who takes time off from the workforce to raise children, or it can include things like one spouse working two jobs to make ends meet while the other spouse is unemployed;

b.  the economic circumstances of each party—  if one spouse has an independent source of wealth, the judge can take that into consideration when dividing marital assets and debts;

c.  the duration of the marriage—  just like with alimony, the length of the marriage can have an effect on division of marital assets and debts.  Shorter marriages may result in less than a 50/50 split if that would be unfair to the spouse who amassed most of the wealth during the marriage;

d.  interruption of the career or education of either party—  this could be the classic case of one spouse being a homemaker or stay at home mom, or of one spouse dropping out of college to care for children;

e.  contribution of one spouse to the other’s career or education—  this could be one spouse works doubles to earn enough to put the other spouse through college, or a situation where one spouse uses a significant portion of marital assets to pay for their education or job training.  Judges are sometimes apt to view education as a benefit only to the spouse who went to college during the marriage.  For this reason, many judges require the spouse who incurred a student loan to be fully responsible for its repayment;  

f.  the desirability of retaining any asset separate and apart from the other spouse—  in rare circumstances, it makes sense for one spouse to have a certain marital asset.  The judge in your case will have the power to make a determination on this issue;

g.  the contribution of one spouse to the acquisition of assets—  if one spouse has made very astute investment decisions or started a lucrative business without assistance from the other spouse, the court could decide that a 50/50 split of those assets would be unfair to the spouse who created the wealth;

h.  the contribution of one spouse to the incurring of debt—  if one spouse incurred significant debt for their own purposes, and especially if they hid the debt from their spouse, the court could decide it would be inequitable for that debt to be split 50/50;

i.  the desirability of maintaining the marital home for children—  although somewhat rare on a permanent basis, the judge could determine that the spouse who has the children the majority of the time should be awarded an unequal share in the marital home;

j.  intentional dissipation, waste, or destruction of marital assets—  if one spouse intentionally wastes marital assets, the judge could decide the remaining assets should be unevenly divided to compensate the other spouse.  For example, Joe flies to Vegas and empties the joint bank account playing blackjack.  Mary, his wife, may be awarded a larger share of the equity in the house, or a larger than 50% share of Joe’s 401(k), to compensate her for the loss of the squandered marital assets;

k.  any other factor necessary to do equity and justice between the parties—  this is the real wild card.  The judge can obviously justify almost any uneven split using this factor.

Marital assets may include:

a.  your income from work and your spouse’s income from work—  that’s right, when you earn money then whatever you spend it on, or wherever you put it (like a bank account), becomes a marital assets which is subject to equitable distribution;

b.  retirement accounts, including 401(k), IRA, 403(b), and pension accounts—  many times this comes as a shock to a spouse who stands to lose half their retirement.  And it comes as a different shock to the spouse who may be entitled to half of their ex’s retirement.  The “marital portion” of your retirement is whatever was placed into the account from the date of the marriage through the divorce filing date, plus the gains (or losses) thereupon.  So, if a spouse had a 401(k) before and during the marriage, whatever was in the 401(k) as of the date of marriage, plus any gains or losses on that money, is NOT a marital asset, but the rest of the account value is a marital asset.  This also holds true for pensions.  These assets get divided in a special way, by the use of a Qualified Domestic Relations Order, or QDRO (pronounced “quadro”).  A QDRO is a special court order that is signed by your divorce court judge.  The QDRO directs the brokerage account to transfer a certain portion of the retirement funds to the other spouse’s IRA.  If the other spouse does not have an IRA, they can open one at a local bank or credit union.  The reason is QDRO is necessary is so that there are no tax penalties to taking the money out of the retirement account.  Without a QDRO, there may be a 10% IRS tax penalty imposed and an additional 25% may be withheld for federal income taxes.  A QDRO must be approved by the plan administrator for the brokerage firm before the judge signs it.  Sometimes a QDRO can take longer to be finalized than the actual divorce;

c.  money in the bank or credit union, including checking, savings, and money market accounts—  this includes any money in any account, no matter how the account is titled.  So, this means joint accounts, accounts just in your name, accounts just in your spouse’s name, and all or some of the money in accounts where you or your spouse and joint with a third party.  Sometimes we see a spouse on a joint account with their parent.  This can become a sticky legal situation, especially if there are significant assets involved.  Contact us so you can have an experienced and Board Certified divorce attorney assist you;

d.  stocks, bonds, mutual funds, gold, silver, CDs, crypto, and brokerage accounts—  we talked earlier about retirement accounts and QDROs.   Now we are talking about regular stock, bond, and mutual fund accounts, and regular CDs.  The kind where the interest is taxable each year, rather than a retirement account.  Again, any portion of the accounts from the date of the marriage through the divorce filing date will generally be considered a marital assets.  In the case of stocks, bonds, mutual funds, precious metals, gold, and silver, the courts also factor in the gains or losses on those assets during the marriage.  Whatever was owned before the date of marriage is usually a pre-marital asset that is not equitably divided.  However, there is the principle of commingling.  We will discuss commingling of assets in a little bit.  But if non-marital or pre-marital assets are commingled with marital assets, the non-marital or premarital assets may have not become 100% marital assets!  On another note, you may wonder how CDs could be divided by the court if they are not going to mature for a while.  That’s a good question.  Let’s say a married couple has a CD that matures in 3 years, but they are finalizing their divorce now.  There are a number of ways that can be handled, including one spouse being awarded all of the CD and the other spouse being awarded more in other assets, both spouses having to wait until maturity for the CD to be split, and other creative options;

e.  houses—  the house is usually one of your marital assets.  Who gets to live in the house during the divorce case is the subject of a whole other article.  And if the house was purchased by one spouse before the marriage, then whether or not it is a marital asset or not is the subject of a whole other article.  The bottom line is that houses are big deals when it comes to divorce.  Feel free to read all of our articles concerning the marital home;

f.  any other real estate and timeshares—  other real estate, including vacant land, out of state property, and timeshares, can be marital assets.  Yes, the Florida divorce court has what is called jurisdiction to order how an out of state property be split between the husband and wife.  Sometimes a couple decides they want to both keep the timeshare and they will spit the time amongst themselves.  Do you really want to do that?  Then you are still financially tied to your ex, even after the divorce is finalized.  Think long and hard before you do that.  For physical real estate, it may be necessary to have an appraisal done on the property.  Sometimes one spouse doesn’t like the appraisal ordered by their ex and gets their own appraisal done with someone else.  And when that happens, you can sometimes see big differences in value from one appraisal to the next.  This can make a huge impact on whether or not the division of marital assets is being done fairly or not;

g.  furniture, appliances, clothing, jewelry, tools—  no matter where it is or who bought it, all of these are fair game to be marital assets.  I hear husbands say, “Why would she want half my tools?”  The answer is money.  Those tools may have significant value.  Also, if a wife purchased a lot of designer handbags, shoes, and clothes, those may have significant value, too.  Have you seen what those sell for used on Poshmark or eBay?  So, don’t underestimate the significance of these “forgotten assets.”  Furniture and appliances may also have significant value.  If your case is going to trial, many divorce judges in Hillsborough, Pasco, and Pinellas counties do not want to spend time getting into the specifics of what they call personal property.  That includes everything we are talking about here.  Sometimes they order the parties to make A/B Lists.  An A and B list is where you and your spouse write down all of the assets, then you take the assets and put them onto one of two lists.  The idea is that each list (one list is the A List and one is the B List) will have a grand total of assets worth about what the other list has.  Then you and your spouse decide who gets which list.  This can be tricky!  I have seen this become a sticking point in many cases.  You may want to discuss this with a Board Certified divorce attorney before you speak to your ex about it;

h.  collectibles—  people collect all kinds of things, such as dolls, artwork, coins, stamps, spoons, baseball cards, sports memorabilia, Christmas collectibles, toys, and other items.  Sometimes these collections have significant value.  Sometimes they do not.  Spouses often disagree about the value of these collections.  The question as usual is, Was it acquired during the marriage?  If the answer is yes, it almost always a marital asset. ;

i.  pets—  unfortunately, Florida law in our opinion is in the stone age when it comes to the treatment of animals.  Believe it or not, pets are almost always legally considered to be personal property.  That means they are treated for legal purposes just like a kitchen table or a painting on the wall.  There have been some small steps in the law to recognize the tremendous emotional value of pets, but if the court is putting a price tag on them, it is  price tag as to what they are worth in money if you were sell them.  Isn’t that just crazy?  Anyway, because of this, spouses understandably do not want to value their pets based on money, and they should not do so.  If the family pets are important to you (as ours are to us), then give some serious thought as to the strategy you will employ to ensure you wind up keeping them after the divorce;

j.  inheritances (under certain circumstances)–  this is another area where people can be shocked about what the law says.  Sometimes, inheritances can be considered marital assets.  This is usually true if the inheritance has been commingled with marital assets.  We will discuss commingling with you later in this article.  We also have another whole page just on inheritances because this can be a huge legal issue in your case;

k.  legal settlements—  has there been a car accident or other source of a potential legal settlement?  If so, it is usually considered a marital asset.  This is one of those reasons why it is best to actually get divorced if things aren’t working out rather than staying married and living separate lives;

l.  lottery winnings—  we all can dream, right?  

m.  cash—  cash in the bank, in a certificate of deposit, under the mattress, in your wallet, or in your safe.  Wherever it may be, cash is a marital asset and will be subject to equitable distribution;

n.  businesses, professional practices, and business interests—  do you or your spouse own a business?  Are you or your spouse a professional such as a doctor, dentist, attorney, or accountant?  Or do you own rental property?  Businesses are assets, and even if only one spouse created the business, the other spouse may have a claim for half of the business.  As you can imagine, this can be huge!  If you or your spouse are a business owner, you have a lot at stake.  Call us today to see how we can assist you with the intricacies of divorce as it relates to the business;

o.  cars, motorcycles, boats, watercraft—  these are marital assets.  Regardless of who is on the title, and no matter who drives it the most, any vehicle or watercraft acquired during the marriage will be a marital asset.  Many times, the vehicles or watercraft still have loans outstanding at the time of the divorce.  So judges may allow one spouse to keep a certain car, for example, but make that person also responsible for the payments.  If that car is worth quite a bit more than what is owed on it, there may be an equitable distribution equalization payment that needs to be made from the spouse keeping the car to the other spouse.  Also, judges may award a car to one spouse as part of an unequal distribution. For example, let’s say the wife makes quite a bit less than the husband and there is a paid off 2009 BMW and a 2013 BMW with a significant loan balance on it.  The judge may award the 2009 to the wife and let her keep it all since it is paid off because she has a lot less income than the husband, who can afford to make the 2013 BMW payments.  There are many different variables that go into the mix, and that’s why an experienced divorce attorney is a wise investment in your financial future.

Non-Marital Assets are those assets which are not equitably divided in a divorce.  These include pre-marital assets, such as the portion of a person’s 401(k) that existed before the marriage date or a house that was purchased before the marriage.  

Commingling Can Make Non-Marital Assets into Marital Assets:

Something can happen that will turn a pre-marital or non-marital asset into a marital asset, and that is if the non-marital asset is commingled with a marital asset.

Here’s a common example using non-marital property.  Let’s say Julie is married to Bill.  Two years into their marriage, Julie’s mom dies and she is left an inheritance of $400,000.  Two years after that, Bill files for divorce.  Like almost everyone, they don’t have a prenup. Is Julie’s inheritance a non-marital asset which belongs solely to her, or is it a marital asset?  Then answer is, “It depends.”  Let’s look at the possibilities:

If Julie took her inheritance when she received it and kept it in a separate bank account with only her name on the account, and if she didn’t add to it or withdraw from it, and if she didn’t use the money for anything but just allowed it to sit there and earn interest that was re-deposited into the same account, it would be a non-marital asset.  It is 100% Julie’s money in the divorce.

But, if Julie took her inheritance and put it in her joint bank account with Bill, and they continued to use the joint bank account to pay their bills, and they continued to have their paychecks direct deposited into their joint bank account, then Julie has commingled the inheritance with marital assets and Bill can claim that all of the inheritance is now a marital asset.

If you are like Julie, don’t despair!  There are arguments to be made as to why it’s not equitable for Bill to get 50% of the inheritance.  You should have a Board Certified divorce attorney like Mr. Radeline assist with that.  

Another commingling example using pre-marital property:   Let’s say Betty is married to Bob six years ago.  Before they got married, Bob bought his house for cash.  And after the marriage, Betty moved in with Bob.  Betty never did anything to improve the value of the house.  Betty never paid for any of the bills.  But Bob did change the deed to the house a year after he got married.  He thought it was the right thing to do for estate planning purposes to add Betty’s name on the deed to the house.  Like most everyone, they don’t have a prenup.  Ten years into the marriage, Betty files for divorce.  Is the house a marital asset, or is the house a pre-marital asset that belongs 100% to Bill?  The answer is:  It is a marital asset.  Betty can ask for half of the value of the house.  In the eyes of the law, Bill “gifted” it to her by adding her name to the deed.

Again, if you are like Bill, don’t panic yet.  There could be some arguments to make as to why that result is not equitable.  And of course, the facts of every case are different.  To find out about your exact situation, please contact our office so we can assist you with this important legal process.

Marital debts may include:

a.  the mortgage, second mortgage, and HELOC on the house—  no matter who signed the promissory notes and mortgage, any home loans are usually considered marital debts.  For couples who own a home, this may be their single largest marital debt.  

b.   credit cards—  the credit cards can be a very significant debt load for a marriage.  Remember, it doesn’t matter if the cards are joint, just in the husband’s name, or just in the wife’s name.  They are all marital debts if they were incurred during the course of the marriage.  Sometimes we see a spouse incur quite a bit of significant debt when they move out and before the case was filed.  That’s one of the many reasons why it is legally sound to get your divorce case filed sooner rather than later.  The spouse that did not go out and buy new furniture, put first, last and deposit down on a new place, and incur moving costs may be asked to pay for half of those expenses.  Sometimes a judge orders one spouse to pay for certain credit card debts, and the spouse fails to do so.  Eventually, if it was for example a joint credit card, the other spouse may be sued or pursued by a debt collector.  You can take your ex back to court to enforce the final judgment, but the divorce judge’s ruling as to who has to pay certain joint debts is not binding on the creditors themselves.  For example, let’s say that Jack and Jill have a joint Visa credit card issued by Bank of America.  It has a balance of $10,000.00 and the debt is entirely marital debt.  Because Jack will be keeping the house, the judge thinks it is fair for him to pay 100% of the BOA Visa card and orders that he do so in the final judgment.  He makes minimum payments for a few months, then stops paying when he loses his job.  A few months later, both Jack and Jill are sued by BOA for failing to pay the credit card.  Even though the divorce judge ordered Jack to pay all of it, BOA can still sue both ex-spouses because it was a joint credit card.  That’s not to say Jill has no recourse.  To the contrary, she can take Jack to court to enforce the judge’s provisions set forth in the final judgment.  But as you can see, even division of the credit card debt can present challenges.

c.  medical expenses—  medical expenses can certainly add up these days.  Even if you have insurance, just the co-pays and deductibles as a result of a trip to the ER can be in the thousands.  Medical expenses are ordinarily considered marital debts, even if those medical services were rendered to only one spouse.  Children’s medical expenses can be equally expensive.  

d.  car and boat loans—  loans for vehicles and boats are, you guessed it, marital debts if they were incurred during the course of the marriage.  The car or boat has value to it, and many times at trial a judge will try to simply things by awarded a vehicle to one spouse and also requiring them to be fully responsible for the loan that goes with that vehicle.  However, we have seen cases where one spouse made significantly less money than the other spouse and as a result was awarded a vehicle and the other spouse was ordered to pay the loan.  So anything is possible, and that’s why it makes sense to have an experienced and Board Certified divorce attorney with you during your divorce case.

e.  loans taken against a 401(k)—  if one spouse has a 401(k) and takes a loan against it and uses the funds for marital purposes, then the loan is a marital debt.

f.  veterinary expenses—  just like medical expenses, veterinary expenses are marital debts if they were incurred during the course of the marriage.  Even if you hate Fluffy the cat and she hates you, you will most likely be paying for half of her gallbladder surgery if it occurred before you filed for divorce.

g.  student loans—  student loans are always a source of controversy.  As a starting point, the student loans are marital debts if incurred during the course of the marriage. Unfortunately, the degree or knowledge acquired by the spouse who incurred the student loans is not a marital asset.  Having said all of the general rules, many times it is just unfair to shoulder one spouse with half of the student loan debt incurred by the other spouse.  This is one of the marital debts that has the most wiggle room when it comes to argument that an even distribution of the debt would be inequitable.  That’s legalese for saying it just might not be fair.

Sometimes people tell me:  My spouse racked up all of those credit cards on:

• Designer clothes, shoes, and handbags
• Nights out with his friends drinking and playing darts
• A cruise with her girlfriends
• Gambling at the casino
• Etc.

Most of the time (but not all of the time) those are still considered marital debts even if the debt was incurred as a result of the hobbies of only one of the spouses.  The silver lining is that if there were any winnings from the casino or if those designer bags are still around, they are marital assets and are subject to equitable distribution.  However, there are some circumstances where it is unfair to saddle one spouse with debt that was incurred exclusively for the other spouse.  We can always make arguments in court and try to make the distribution of debts less than 50/50, and in your favor, as circumstances warrant.

A word about Bankruptcy:

Sometimes it makes sense for one or both spouses to file for bankruptcy as part of a comprehensive solution to their divorce case.  Bankruptcy is not to be taken lightly, and it will impact your credit for up to 10 years.  However, just regular bad credit entries will negatively impact your credit for up to 7 years anyway.  

There are two types of bankruptcy that apply to most situations:  Chapter 7 and Chapter 13

Chapter 7 bankruptcy will allow you to wipe out all non-secured debt, such as credit cards, medical expenses, veterinary expenses, and unsecured signature loans.  If you have any secured debt, such as a mortgage on a house or a car loan, a Chapter 7 will allow you to wipe out those debts only if you give up the asset security the debt.  In other words, if you want to wipe out your mortgage in a Chapter 7 bankruptcy, then you must give up your house.  

Technically, all of your “non-exempt” property can be taken by the bankruptcy court in a Chapter 7.  If you have homestead real estate, they let you keep $1,000 of equity in a car, 100% of your equity in the homestead property, 100% of your equity in 401(k), 403(b), IRA, SEP, or pension plans, 100% of paid-up life insurance, and $1,000 in the form of any other assets.  If you do not have homestead real estate, you can keep $1,000 of equity in a car, 100% of your equity in 401(k), 403(b), IRA, SEP, or pension plans, 100% of paid-up life insurance, and $4,000 in the form of any other assets.  

If you are behind on your mortgage payments, a Chapter 7 in and of itself will not assist you in being able to make up the missed payments.

You and your spouse do not have to file bankruptcy together.  We can discuss this with you in-depth in the context of your divorce case.

There are income limits that may prevent some people from being able to file for Chapter 7.  If you earn too much, you can still file for Chapter 13, which has no income limits.

A Chapter 13 bankruptcy usually allows you to keep all of your assets.  That’s right, it means you keep 100% of everything.  There is a downside, however.  The down side is that for up to 5 years, you will be making a monthly payment to the bankruptcy court.  After you monthly payments end, whatever else is still owed on any non-secured debts (credit cards, medical expenses, etc.) will be wiped out.  If you are behind on your mortgage payments, a Chapter 13 can allow you to make up the missed payments over a number of years.  Like a Chapter 7, only one spouse can file for Chapter 13 if that otherwise makes sense, even if your divorce is not yet complete.  Contact us for more information on how bankruptcy may provide you with a fresh start along with your divorce.

FAQ On Equitable Distribution

What is a marital asset?

A marital asset is usually any asset owned by either the husband or wife that was acquired from the date of the marriage through the date of filing for divorce.

What is a marital debt?

A marital debt is usually any debt in the husband’s name, the wife’s name, or joint, that was incurred from the date of the marriage through the date of filing for divorce.

What is a premarital asset?

Pre-marital assets are assets that one spouse owned before the marriage.  It a pre-marital asset remains a pre-marital asset and is not commingled with marital assets, the spouse who owned it before the marriage usually keeps 100% of that per-marital asset.  

What is a non-marital asset?

Non-marital assets are assets that one spouse acquires during the marriage that are not marital in nature.  These are rare, because almost everything acquired during the marriage is a martial asset.  One of the more common types of a non-marital asset is an inheritance.  

Can my spouse get half of my pre-marital assets?

Yes, if you have commingled the pre-marital assets with marital assets.  One of the common ways we see people make this mistake is by adding their spouse to the deed on their house.

Can my spouse get half of my non-marital assets?

Yes, if the non-marital assets are commingled with marital assets.  One way we see this happen is if a spouse received a non-marital inheritance and then adds marital money to the account and commingles it.

What is a commingled asset?  Or, what is commingling?

Commingling is when you take a pre-marital or non-marital asset and somehow mix it with a marital asset.  There’s an old phrase that “a little leaven leavens the whole lump.”  That is exactly what can happen with commingling. Mixing a large pre-marital asset with even a modest amount of marital funds can buy you a ticket to the courtroom to fight over whether that pre-marital asset has not totally morphed into a martial assets.  There is no bright-line rule that applies to every case.  This is a complex area of the law, and one in which you should seek legal advice from an experienced and Board Certified divorce attorney like Mr. Radeline.

My spouse has incurred a lot of debt I didn’t know about.

We see this happen quite frequently.  You can bet your spouse will claim you should pay half of their debt.  There may be reasons why that is inequitable.  An experienced divorce attorney like Mr. Radeline can assist you.

What is equitable distribution?

Equitable distribution is the procedure by which the judge divides up the divorcing couple’s assets and debts.

Can we agree on how to split everything up?

Yes, of course!  And if you and your spouse can agree, that is great news.  If you agree on how to divide the assets and debts, we can create a custom, legal, specific document that will lock in that agreement and make it legally binding.  

If we agree on everything, does it have to be 50/50?

If you and your spouse are in agreement, then it does not have to be 50/50.  So long as you both voluntarily came to the agreement, and it was not done under duress or coercion, then almost any agreement is ok with the judge.  When we draw up the agreement and represent you in court, just about 100% of the time the judge doesn’t even ask a word about the specifics of the settlement agreement.  We present the evidence and testimony to the judge, and we know what the judge is looking for to make sure it is legally acceptable.  Once the judge signs off on it, you are divorced and can move on with your life.

My spouse can ask for half of the money I saved from working at my job?

Your income, and your spouse’s income, are marital assets.  If you save some of it, then what is saved is a marital asset.  If you purchase anything with your income, then what was purchased is a marital asset.

Do I get to keep my 401(k), IRA, SEP, pension, 403(b)?

Your retirement, including 401(k), 403(b), IRA, SEP, or pension, is a marital asset to the extent value was added to it during the course of the marriage.  Your spouse can ordinarily claim half of the marital portion of your retirement.

Will I have to pay taxes when my ex takes part of my 401(k), 403(b), IRA, SEP, or pension?

Not if it is done correctly.  We use a special court order, called a QDRO, to ensure it is a tax-neutral event.

What is a QDRO?

A QDRO is a special court order that is signed by your divorce court judge.  The QDRO directs the brokerage account to transfer a certain portion of the retirement funds to the other spouse’s IRA.  If the other spouse does not have an IRA, they can open one at a local bank or credit union.  The reason is QDRO is necessary is so that there are no tax penalties to taking the money out of the retirement account.  Without a QDRO, there may be a 10% IRS tax penalty imposed and an additional 25% may be withheld for federal income taxes.  A QDRO must be approved by the plan administrator for the brokerage firm before the judge signs it.  Sometimes a QDRO can take longer to be finalized than the actual divorce.

How can I get actual cash from my spouse’s 401(k), 403(b), SEP, IRA, or pension?

Many people who are on the receiving a portion of their spouse’s retirement as part of the divorce need cash rather than money socked away for retirement.  You may have bills that need to be paid today, and divorce can be emotionally, spiritually, and financially draining.  There is a way to receive cash from the QDRO.  The best practice is to have it specified up front as part of the QDRO.  While you will still have 25% withheld by the IRS for potential federal income taxes, you can avoid the additional 10% IRS penalty.  The only exception is a pension.  Usually cash cannot be withdrawn from a pension because the pension only begins to pay once a certain retirement age is reached.

Who gets the pets in a divorce?

That’s a great question.  Pets, according to the archaic law in Florida, are considered personal property.  That means they are in the same category as furniture, jewelry, and cars.  We can present a case to the judge as to why the pet is much more than just “personal property” and in many cases a judge will take into account who really wants the pet and who has historically taken care of the pet.

What is the Florida equitable distribution statute?  Or, where is the Florida equitable distribution law?  Or, how do I research Florida equitable distribution?

Like any statute, keep in mind that for any particular sentence in that statute there have been many cases decided by judges that may alter it.  What the statute says does not necessarily mean what you think it means.  I know that sounds crazy, but it is true.  The cases are called case law, and the cases can modify, annul, expand, clarify, and restrict what the statute says.  And the confusing part is that the statute doesn’t change to reflect the case law.  Having said all that, the equitable distribution statute is currently located at Fla. Stat. 61.075.

Can I ask the judge to give me more than half of the property?

Yes.  There are certain circumstances where the judge has authority to unevenly distribute both marital assets and debts.  However, remember that the judge is required to begin with the assumption that assets should be divided about evenly, unless good cause is shown for why they should not be divided about evenly.  You should consult with an experience divorce attorney.

Do I have to pay for my spouse’s credit card bills?

If your spouse incurred the debt during the marriage, then the credit cards are presumed to be marital debt.  In some circumstances, we may be able to persuade the judge to have your ex pay for all of the debt they incurred.  You should consult with any experienced and Board Certified divorce attorney like Mr. Radeline regarding your exact circumstances.

Do I have to pay for my spouse’s medical expenses when we are divorced?

If your spouse incurred them during the course of the marriage, they are considered marital debts.  Under most circumstances, you may be liable for half of the debt.  Individual cases can vary, so call Mr. Radeline to discuss this.

Do I have to pay for half of my spouse’s student loans in divorce?

It depends.  Unfortunately, the student loans are marital debts if incurred during the course of the marriage.  This means they are presumed to be split about equally by the parties.  It is unfair, however, that the degree or knowledge acquired by the other spouse is not a marital asset.  This is one of the types of marital debts where you have a better chance of convincing the judge it is inequitable for you to should your spouse’s student loan debt.  Having an experienced divorce attorney like Mr. Radeline handle your case will increase the likelihood of a positive outcome.

Can I file for bankruptcy in the middle of divorce?

Yes, you can file for bankruptcy alone, or you and your spouse can file together before, during, or after your divorce is finalized.  Timing your bankruptcy just right with your divorce can be tricky, and we are here to help.