Until Money Do Us Part

By Carlos A. Nunez and Daniel Foodman

Weddings are wonderful. It is a time for celebration as two are unified in love. They promise to have and to hold, from that day forward, for better, for worse, for richer, for poorer . . . "until death do us part." Unfortunately, much too often, divorce beats death to the punch and "parts" the couple. Along the way, the "for richer" and "for poorer" becomes a fight for the assets. So, who gets what?

In Florida, and just about everywhere else, the answer is governed by statute. The relevant statute is section 61.075, which is entitled "Equitable distribution of marital assets and liabilities." The term "equitable" simply means what is fair. The idea is to have a fair distribution of the marital assets.

So what is fair? Half is presumed to be fair by the statute, which says that the "court must begin with the premise that the distribution should be equal . . ." Whether half is what each eventually gets depends on other factors listed in the statute. For example, the court may consider the contribution to the marriage by each spouse, including "contributions to the care and education of the children and services as homemaker," the economic circumstances of the parties, the duration of the marriage, any interruption of personal careers or educational opportunities, and the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, both to the marital assets and the nonmarital assets of the parties.

But, the spouses will ask, I may get half of what exactly? The answer is again found in the statute. The judge is required to "set apart to each spouse that spouse's nonmarital assets and liabilities," and then distribute the "marital assets." The marital assets include assets acquired during the marriage, individually be either spouse or jointly by them. They also include the enhancement in value and appreciation of nonmarital assets resulting from the efforts of either spouse during the marriage. In contrast, nonmarital assets include, but are not limited to, assets acquired by either party prior to the marriage, and assets acquired in exchange for such assets, and inheritances.

An example should help to clarify the distinction. In a Florida case, the husband had brought a retirement account into the marriage. At the time, the account balance was about $27,000. This was a nonmarital asset, as it was acquired prior to the marriage. Years later, the account had a balance of almost $400,000. The husband argued that the entire balance was a nonmarital asset. The judge disagreed with the husband and ruled that the enhancement in value of the original $27,000 was a marital asset because of the husband's active management of the account during the marriage. In other words, the increase in value resulted from the efforts of the husband during the marriage. The increase in value was thus subject to distribution as a marital asset even though the original value was a nonmarital asset.

Thus, things are not always what they appear to be to one spouse. Like it or not, when you decide to unify in love, you may also be unifying in money, unless certain steps are taken to avoid the latter union. And, of course, lawyers can help you take those steps.

In summary, WNF Law, PL - Waserstein Nunez & Foodman represents an exclusive list of clients who require legal representation in its collective areas of expertise. Located in Miami, Florida at 201 S. Biscayne Boulevard on the top floor of the Miami Center (34th Floor). Please contact Brenda Bassett at 305 760 8500, Bsb@WNFLaw.com to learn more about WNF Law, PL or at its website www.WNFLaw.com.