Property Division

Marital vs. Non-marital Assets and Debts, Value and Division

The first step in dividing property is for each party to make a complete disclosure of all assets and liabilities. Next the parties have to determine whether property is a marital asset or a non-marital asset. Generally, non-marital assets remain the property of its original owner if the asset has not been commingled with marital assets or transferred into joint ownership.

Once the property is determined to be a marital or non-marital asset, there is a determination of the asset's worth. If the parties agree on the value of the their assets, this will greatly reduce the legal costs and length of the discovery process. The parties may choose to seek the assistance of professional appraiser to determine values of real property. An actuary is often used to determine the values of a pension and retirement fund. Experts are generally used to determine the value of business interests and ownership.

After there is a determination of the asset's worth, the property must be equitably divided between the parties. The parties must also determine how their debt will be divided.

The parties must determine if one spouse will remain in the marital home after the divorce or if the parties will sell the property. If a party remains in the marital home during the divorce and/or remains in the residence until it is sold, the parties must determine who will pay for its upkeep and monthly expenses.

The courts can enter a Qualified Domestic Relations Order (QDRO) to allow the division of certain retirement accounts so the parties are often able to avoid penalties and taxation. Even so, there can be significant tax consequences for any division of property . It is this office’s advice to seek the professional opinion of your accountant or tax professional to determine the tax consequences.

It is better if the parties can divide all personal property in an equitable and respectful fashion.

If the parties cannot agree on the value of or the division of assets and debts, there will be a trial and the court will determine the value of the assets and divide the property.

Unfortunately, there are times when one spouse will misappropriate the parties’ assets after the parties have separated but prior to the entry of the Final Judgment for Dissolution of Marriage. The misuse of funds or assets is called "dissipation." If you believe your spouse is using marital assets to pay for non-marital or non-essential expenses, it is important to discuss the situation with your Kissimmee or Melbourne Divorce Attorney so your interests are fully represented.