Today, as more and more couples enter into second or third (or more!) marriages, property distribution upon divorce can require some sophisticated calculations and considerations by the parties, the trial judge and sometimes, the appeals court justices.
I just read a decision handed down recently by Florida’s Second District Court of Appeals (located in Tampa-Lakeland) in the case of Ter Keurst v. Ter Keurst, ___So.3d_____, 41 Fla.L.Weekly Ds346a (October 14, 2016) which dealt with a difficult, but increasingly common, factual scenario.
Bernard and Kimberly met in 2008 and moved in together shortly thereafter, living in Kimberly’s home while using Bernard’s home as rental property. Before they married they jointly purchased a beach condo for $247,000, using Kim’s money as a down payment. They married in October, 2009 and purchased a new home for $450,000, using $30,000 from Kimberly’s 401(k), a $15,000 loan from Kimberly’s former husband’s sister (I told you things would get difficult) and $45,000 that had been earned by Kimberly since the parties got married.
To further complicate the situation, Bernie and Kim used the new home to secure a HELOC and borrowed $72,000 against it, paid the former sister-in-law back, and used some to pay down the mortgage balance on the beach condo they bought before they were married, and then transferred ownership of the condo from themselves as joint tenants to both of them as a married couple, supposedly not as a gift to the marital estate but rather in an effort to avoid creditors.
At trial, the judge utilized “special equity” considerations to divide up property. Unfortunately for Kim and Bernie the concept of “special equity” in marital property distribution was abolished in Florida in 2008.
The appeals court called for a big do-over, instructing the trial judge to reconsider the property split beginning with the determination of what was marital as opposed to non-marital property and proceeding then with the premise that distribution of marital assets should be equal, unless an unequal justification is merited under the 10 specific factors listed in F.S. 61.075 (such as length of marriage, economic situation of the parties, whether one party interrupted employment or educational opportunities, contribution of each spouse to marital assets and liabilities, and so forth).
Knowing and understanding the provisions of Florida family law can help you determine a fair division of marital assets and liabilities. These parties spent in excess of $22,000 on lawyers before the appeal, and now get to return to the courthouse to have another shot at it.
With over 30 years of experience, Mr. Burk understands how devastating the break-up of a marriage can be. That’s why he takes a compassionate and personalized approach to your case, explaining the law and procedure in language you can understand. Many times, issues that at first seem overwhelming and complex can be sorted out easily once you have a clear understanding of what to expect from the judicial system. The law exists to protect you, your property and, most importantly, your children and your relationship with them. You need advice from a professional who is level-headed, knowledgeable, experienced and interested in helping you resolve your current difficulties in order to move on to a brighter, safer and more secure future.
If you need advice on property division, support issues or divorce law in general, call the Law Office of Steven R. Burk, P.A. today at 386-738-9320 (DeLand) or 386-756- 4373 (Daytona) for a free consultation.