EQUITABLE DISTRIBUTION OF MARITAL AND NON-MARITAL ASSETS
Myths & Facts
Myth: Alimony is a guarantee in a divorce
Fact: Alimony, is never a guarantee. Florida Statute provides that alimony is based on a “need and ability to pay” basis. A spouse must be able to demonstrate a need for an alimony payment, and the paying spouse must have the ability to pay. The need and ability to pay is decided upon a comprehensive review of financial resources of both parties. Some of the factors the Court is required to consider are; The standard of living established during the marriage, the duration of the marriage, the contribution of each party to the marriage such as child-rearing, and the earning capacity and skills of each party.
In Florida, there are several types of alimony:
- Temporary alimony
- Bridge-the-gap alimony
- Rehabilitative alimony
- Durational alimony
- Permanent alimony
Myth: The Mother automatically gets majority custody of the children after divorce.
Fact: Florida statutes outline 20 factors for a court to consider. These factors include items such as the capacity and disposition of each parent to act upon the needs of the child as opposed to the needs or desires of the parent, the moral fitness of the parents, the capacity and disposition of each parent to provide a consistent routine for the child, and in some cases, the preference of the child. The most important factor the court considers is whether the best interests of the child is that both parents should be entitled to equal time.
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Myth: Any item purchased during marriage and is titled in your sole name is not split in a divorce.
Fact: The determinative factor on whether property is split is when was the property purchased and manner it is titled. In other words, the name on the property does not always equate to rights to property. During a divorce, all marital assets and liabilities will be equitable distributed to the parties. “Equitable” does not mean equal, rather fair considering all the property, financial resources, debts, and liabilities. In other words, an asset such as a bank account or a house may be in only one spouse’s name, if the asset was purchased during the marriage, or if marital funds were used to enhance the asset in any way, it may be considered marital. This does not mean that the spouse who purchased the item or property is not entitled to their non-marital portion of the item, however, simply having their name on the property does not guarantee them full ownership upon the divorce.
Myth: I must prove I have a valid reason for divorce, ie., adultery, spousal abuse.
Fact: Florida is a no-fault state. This means that either party can seek a divorce, regardless of the reason. While it takes 2 people to get married, it only takes 1 person to begin the divorce process. In Florida, all that a court will require is the allegation that the marriage is “irretrievably broken.”
Myth: Cheating means more property for the other spouse.
Fact: Florida is a no-fault state. The only grounds needed to petition for a divorce is to allege “irretrievable broken.” Adultery does not mean the unfaithful spouse will be penalized. Typically, a judge will only consider adultery in a divorce case if the adulterous activity involved a “wasteful dissipation” of marital assets. For instance, if your spouse used significant amounts of marital assets on their new lover, then a judge may award you more alimony but not necessarily more marital property.
Myth: An inheritance is not a marital asset.
Fact: Not every asset in a marriage is subject to division upon divorce. Assets received as an inheritance are not always considered a marital asset. Inherited assets normally remain in the possession of the person who received the inheritance. An exception to this would be in the case where the inherited asset is commingled with marital assets or placed into the name of both parties. If that is the case, it may be subject to equitable distribution unless agreed otherwise.
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