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Florida Family Law

The Classification of Inter-Spousal Gifts

One of the most common misconceptions that arises in the context of equitable distribution is the belief that a divorcing spouse is entitled to retain any specific gifts which he or she was given by their partner during the course of the marriage. Clients often assume that a gift, be it jewelry, artwork or cash, which was given to them as a gift should logically remain theirs free and clear from any claim of the donor-spouse.

In fact, although perhaps antithetical to the concept of a gift; the general rule in Florida is that a gift from one spouse to another (termed an inter-spousal gift) is a marital asset subject to division and/or distribution. “Interspousal gifts during a marriage are marital assets subject to equitable distribution.” Dwyer v. Dwyer, 981 So.2d 1254, 1256 (Fla.… Continue reading

Primer on Business Valuation (Part One)

As I noted in my earlier blog entry (Primer on Property Division), when parties are attempting to divide their assets and debts, disputes often arise over the proper valuation of closely held business. Unlike automobiles, real estate or stock in publicly traded corporations; the valuation of privately held companies generally cannot be performed by simply looking up an index or applying to an online database. Instead, an intensive review (typically by a forensic CPA) must be performed in order to determine the price at which a willing buyer would sell and a willing seller would pay for a given entity.

Although most experts will concede that the process of valuing a small business is often as much an art as a science; there are clear methodologies which must be followed in order for the valuation to be recognized as a by-product of generally acceptable accounting… Continue reading

Primer on Property Division

The issue of property division, or equitable distribution, is often the first and foremost concern among dissolution of marriage litigants. While your circumstances may or may not weigh in favor of alimony, child-issues or attorney’s fees; very few divorces can proceed without the identification and division of the marital estate.

Dividing up a marital estate is a four (4) step process which requires: (1.) the identification of assets and debts; (2.) the classification of assets and debts; (3.) the valuation of assets and debts and; (4.) the distribution of assets and debts.

Identification: In order to identify assets and debts you should make a list of each and every piece of property which you would value at more than one hundred dollars ($ 100.00) regardless of when you obtained it, how you obtained it, or whether you consider it to be you (or your spouse’s)… Continue reading

Is an engagement ring a marital asset?

From time to time I come across a client who asks whether an engagement ring is considered a marital asset and, if so, whether it will be subject to the equitable distribution/property division performed at the end of the case. The simple answer is that an engagement ring is considered a pre-marital gift and therefore it is the non-marital property of the recipient (generally the Wife). “It was error for the trial court to consider the wife’s premarital property, such as her engagement and wedding rings which were found to be gifts to the wife, in the equitable distribution scheme.” Melvik v. Melvik, 669 So.2d 328 (Fla. 4th DCA 1996).

A wedding ring, on the other hand, is considered an inter-spousal gift (i.e. a gift between spouses during the marriage) and the equitable distribution statute (Fla. Stat. 61.075) deems inter-spousal gifts to be… Continue reading

Use of Exempt Assets to Pay Marital Obligations

In addition to substantial tax savings/benefits which accompany IRAs, 401ks and other qualified retirement plans, they are often exempt from creditors claims.  This makes them a useful asset protection tool. One creditor who is not hindered by these general exemptions, however, is a former spouse to whom a party owes alimony, support, or attorney’s fees.

On the contrary, the Court may use an IRA to satisfy obligations imposed under Chapter 61 including an alimony obligation or arrearage (and presumably attorney’s fees) despite the fact that this type of account is normally exempt from creditors. “In a Chapter 61 contempt proceeding a trial court may properly look to a former spouse’s individual retirement account to determine whether that spouse has the ability to pay a purge amount in a contempt order. Contrary to appellant’s argument, the section 222.21(2)(a), Florida Statutes (1995), exemption of… Continue reading

Providing Health Insurance Coverage to an Uninsurable Former Spouse

When parties are covered by a group health plan during the marriage, the non-participant spouse is often left without a permanent source of coverage when the marriage ends. Once the temporary relief provided by COBRA or Mini-COBRA ends; a former spouse who is afflicted with pre-existing conditions will often be placed in dire straits.

This issue, which has both financial and emotional components, can often derail settlement negotiations and convert an otherwise simple dissolution into a complex undertaking. If you become involved in a case where long-term health insurance coverage becomes an issue; you should note that an otherwise benign provision in the Florida health insurance code may have a significant impact on your client’s rights and your ability to settle an otherwise difficult case.

Florida Statute § 627.6675 titled Conversion of Termination on Eligibility requires an insurer to provide “conversion coverage” for qualified individuals… Continue reading