It is not uncommon when a marriage breaks down for one spouse to move out of the marital home in anticipation of eventual divorce. Every couple is different – one might file for divorce immediately to get it done as soon as possible, while another might want to give it some time before they file a petition to dissolve their marriage.
What many Floridians in these circumstances may not know is that they should give serious thought to the date they will file for divorce because it can have a major impact on the size and value of the marital estate they will divide in the eventual divorce.
Having an in-depth discussion with an experienced Florida family lawyer early on about the assets and debts at issue can provide important guidance.
The Florida statute governing equitable distribution of property (fair division between spouses at divorce) says that the cut-off date for defining the marital estate is either the day the spouses sign a separation agreement, a date agreed to within that agreement for that purpose or the day the petition for divorce is filed – whichever of these three dates is earliest. So, without a separation agreement, the date that marital assets and debts are frozen into a defined marital estate will be the divorce petition filing date.
Marital estate defined
To understand why this is important, let’s talk about marital versus nonmarital assets and liabilities. Nonmarital assets, also called separate assets, are those a spouse owned before the marriage or they received as an individual through a gift or inheritance from a third party. A nonmarital asset can also be something the individual owner got in exchange for another nonmarital asset.
Marital assets are anything of value that is not a nonmarital asset that came into the marriage to either or both parties. For example, wages earned by either party while married are marital assets.
Nonmarital assets can become marital assets in certain circumstances and some nonmarital assets can become a mixture of the two types depending on how the spouses treated them during the marriage. The classification can also change if a valid premarital or postmarital agreement directs it.
Finally, nonmarital and marital debts are similarly determined. Did the person take on a debt before marriage as an individual or was it created during the marriage?
The “marital estate” is the sum of the marital assets less the marital liabilities or debts. Both are to be equitably divided, which the law presumes to be an equal division unless fairness or equity dictates an uneven distribution between the two parties.
In part 2 of this post, we will explain more about the financial importance of the cut-off date.