By Steve Walden | The Carlson Law Firm
The divorce process involves dividing property and awarding it to each of the spouses. Only property that was purchased or acquired during the marriage by either or both parties (referred to as “marital property”) is subject to division by the court. Property that was owned prior to the marriage, and property purchased with money held by one of the parties prior to the marriage, is “non-marital” or separate property and not subject to divorce division. Gifts to one of the spouses or an inheritance during marriage is also considered to be non-marital property and not subject to division.
Often, I will be asked if a car purchased in one of the spouse’s names alone during marriage is sufficient to create a presumption that it is non-marital property. It is not. The determining factor is when the property was acquired or the source of money that was used to purchase the property.
One issue that complicates defining an asset is either marital or separate is “commingling.” This is when marital assets are combined with separate assets, making it difficult to determine what can be divided in divorce. This occurs when one of the parties continues to deposit earnings into an account she had prior to the marriage; or, if a couple builds a home on land owned by one of the spouses prior to the marriage.
During a divorce, the parties will create an itemization of property acquired during the marriage, providing a value estimate for each item. The list is referred to as an “equitable distribution worksheet.” The parties can use this spreadsheet to negotiate how property and debts will be divided. If no agreement is reached, the itemization may be used by the judge to order an “equitable distribution” of the property. When I speak to potential clients about this process, there is a misunderstanding that each party is required to get equal halves of the property. The truth is that a judge can divide the property in accordance with what they find to be the fair and equitable division under the circumstances of the case, including the past behaviors of the parties.
Examples of items that are commonly divided in divorces include residential homes, vehicles, financial accounts, retirement benefits, small business ownership, and too often, pets. Division of retirement benefits require additional orders, called domestic relations orders, that are forwarded to pension fund managers or 401k administrators to either pay a portion of the retirement benefits each month, or create a separate account to be paid to the non-employee spouse.
Quite often, property disputes involve items personal to one of the parties or have a unique character. Usually, this will be over a collection, such as works of art, coins, sports cards, or even vintage toys. These items can be difficult to assign a value, which may necessitate the use of an expert appraiser. Aside from hiring an appraiser, the parties may rely on receipts for the original purchase of items, research of recent sales of similar items, or use of public markets with listings such as eBay, Facebook Market, or 1stDibs.
Property division in a divorce can be complicated, especially for longer marriages or where considerable wealth is accumulated. I always recommend seeking the advice of a family law attorney to discuss your options if you are considering divorce that will involve division of personal and/or real property.
Steve Walden, Attorney at Law
The Carlson Law Firm
4700 Millenia Blvd. Ste. 500 | Orlando, FL 32839 (407) 487-4700 | swalden@carlsonattorneys.com