Determining marital property

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Latest post Mon, Oct 5 2015 11:09 AM by ca19lawyer2. 12 replies.
  • Thu, Oct 1 2015 3:33 PM

    • juliet1
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    Determining marital property

    My husband and I have been married for 20 years, we have two children that still live at home. My husband makes his money from real estate he owned prior to our marriage. I had a business career but my husband asked me to quit working when we married so we would have a more flexible schedule for travel. I did consulting work until our children were born. I have done all childcare, cooking, cleaning since we were married. I occassionally help my husband with letter writing, typing, legal research, sales and marketing. We have kept our assets separate.

    I understand that the real estate he owned prior to marriage probably would not be considered marital property. But, what about the income earned from the properties?

    He has also bought and sold several properties during our marriage and made quite a bit of money on them. If he used money that he could prove came from non-marital assets, would I be entitled to any of these proceeds?

    And, even if I am not entitled to any of his business assets or profits, don't I at least deserve some compensation for the time and effort I've put into caring for him and the children? And, what about giving up my career so I could better manage our family?

    I am 55 years old so it would be very difficult for me to resume my career. I would be lucky to get a minimum wage job.

    If we divorce, my husband's goal would be to make sure I did not get any money from him. I don't want to "take him to the cleaners" but I do not want to live in proverty.

    Any idea what my situation would be?

    Obviously, I need to consult an attorney but I would like to have some idea of where I stand before doing so.

    Thank you for any advice you can provide.

  • Thu, Oct 1 2015 3:49 PM In reply to

    Re: Determining marital property

    All you have to do is understand the difference between ownership and marital interest.

    He may own all the properties but you have a marital interest in them and in the income from them.

    You might also be entitled to alimony and child support.

    You'd better darn well be willing to "take him to the cleaners" because it looks like he is got things set up to do that to you.

    If your marriage is already failing I suggest you get a divorce attorney ASAP and get started on protecting yourself.

    I've met too many women who walked away from a marriage with nothing because they didn't want to or weren't capable of fighting for what they were entitled to. Don't be one of them.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, Oct 1 2015 4:01 PM In reply to

    • juliet1
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    • FL
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    Re: Determining marital property

    Thank you for your advice.  You are right - I'm reluctant to start a battle, but need to fight for what I deserve.

  • Fri, Oct 2 2015 5:32 AM In reply to

    • Drew
      Consumer
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    • Joined on Thu, Mar 30 2000
    • PA
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    Re: Determining marital property

    Other posts here suggest that some folks with RE do convoluted things to move or hide value ahead of divorce..that may not be so easy to unwrap if you don't wise up early and get some legal advice early and silently. 



  • Fri, Oct 2 2015 8:23 AM In reply to

    Re: Determining marital property

    juliet1:
    I understand that the real estate he owned prior to marriage probably would not be considered marital property. But, what about the income earned from the properties?

    Income earned from nonmarital property is also nonmarital property.

     

    juliet1:
    He has also bought and sold several properties during our marriage and made quite a bit of money on them. If he used money that he could prove came from non-marital assets, would I be entitled to any of these proceeds?

    I don't really understand the question.  Used the money for what?  If you decide to get a divorce, one of the first things that will happen is to review each asset current owned and figure out whether it is marital or nonmarital property.  Marital property is subject to equitable division.  Nonmarital property is not.

     

    juliet1:
    And, even if I am not entitled to any of his business assets or profits, don't I at least deserve some compensation for the time and effort I've put into caring for him and the children?

    Compensation?  Have you not had a place to live and been fed and clothed for the past 20 years?  Aren't those things "compensation"?  You mentioned flexible vacations.  I assume you wouldn't have done that if you hadn't taken at least a few.  Right?  My guess is that you've received plenty of "compensation."  That said, for a 20 year marriage, and given the facts in your post, you'll almost certainly be entitled to permanent alimony.

     

    juliet1:
    And, what about giving up my career so I could better manage our family?

    What about it?  You can't undo what's already done.

     

    juliet1:
    Any idea what my situation would be?

    Beyond my comment above about alimony, I'm not sure if there's more to this question.

  • Fri, Oct 2 2015 8:26 AM In reply to

    Re: Determining marital property

    adjuster jack:

    All you have to do is understand the difference between ownership and marital interest.

    He may own all the properties but you have a marital interest in them and in the income from them.

    The admonition is interesting in light of the comment.  Nothing in the original post supports the conclusion that the OP owns a marital interest in any of the properties mentioned.  The only thing we know is that the properties were owned before the marriage, which suggests nonmarital property.  One spouse does not acquire a marital interest in the other spouse's property owned marriage solely by virtue of being married.  It may well be that the OP has a marital interest in some or all of the properties mentioned, but we have no way of knowing based on the facts given.

  • Fri, Oct 2 2015 9:20 AM In reply to

    • juliet1
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    Re: Determining marital property

    Can you explain "marital interest" and how that might be acquired? I guess I'm confused.

  • Fri, Oct 2 2015 9:27 AM In reply to

    • juliet1
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    • FL
    • Posts 63

    Re: Determining marital property

    I don't think you can hire a babysitter or housekeeper and say that the fact that they are staying in your house and eating your food is all the compensation they are entitled to. So, to say that a stay at home mom (or dad for that matter) is being compensated via room and board for 80 hour weeks of getting kids ready for school, driving them all over, helping with homework and finally tucking them into bed is not fair. Would a judge really feel that the wife deserves nothing for that huge investment of time?

  • Fri, Oct 2 2015 10:23 AM In reply to

    • Drew
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    Re: Determining marital property

    Like it or not, his investment property if he was careful to keep it as separate property is likely to remain as separate property in FL.

    And like it or not, there is little or no economic value attached to being a homemaker or,to,have given up an otherwise promising career.

    And it may be possible to distort RE holdings to,throw off very little current income and or to show little net equity.

    You are probably better served by good divorce counsel in your county who has been there many times before.......



  • Fri, Oct 2 2015 2:00 PM In reply to

    Re: Determining marital property

    juliet1:
    I don't think you can hire a babysitter or housekeeper and say that the fact that they are staying in your house and eating your food is all the compensation they are entitled to.

    I certainly could.  However, if I were hiring a babysitter, nanny, or housekeeper, I would negotiate the terms of employment in advance and document our agreement in writing.  The point, however, is that the notion of "compensation" for services rendered in the context of a divorce is absurd.

     

    juliet1:
    So, to say that a stay at home mom (or dad for that matter) is being compensated via room and board for 80 hour weeks of getting kids ready for school, driving them all over, helping with homework and finally tucking them into bed is not fair.

    I agree.  Unlike a situation with a babysitter, nanny, or housekeeper, with a stay-at-home parent, the children are not someone else's children.  You weren't taking care of your husband's children from a prior relationship.  You were taking care of your children, which is something you had a legal duty to do.  Are you suggesting that you wouldn't have taken care of your children if the prospect of a paycheck wasn't in the cards?

     

    juliet1:
    Would a judge really feel that the wife deserves nothing for that huge investment of time?

    If you haven't figured it out by now, you're barking up the wrong tree and, as I already pointed out, you're unquestionably entitled to alimony based on the facts given.

  • Fri, Oct 2 2015 2:22 PM In reply to

    • juliet1
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    • FL
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    Re: Determining marital property

    Yes, I get your point.

    But what about the idea of a marriage being a partnership? Didn't the wife of the CEO of GE get a large settlement based on the idea that her support of him at home helped him become financially successful?

    If I have some personal savings from before marriage would I still qualify for alimony? Is alimony based on being able to maintain the circumstances I have been accustomed to?

    I appreciate your candid responses.

  • Fri, Oct 2 2015 7:14 PM In reply to

    • Drew
      Consumer
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    • Joined on Thu, Mar 30 2000
    • PA
    • Posts 51,370

    Re: Determining marital property

    That wife was not in FL and as I recall some of the issues she made the point that she was a key player in his business career ...it was not her homemaker duties that were being addressed.

    Get counsel.....

    There Is a point about maintaining your status quo lifestyle 

    Whether 55 is too old to start a serious rewarding  career is up for debate ....some people do it ...and do it well...but I suspect it is a lot harder for most.

    Alimony is a complex proposition in FL especially as to duration..again the need for counsel.

    If you have assets.  Why would they not figure into your ability to maintain yourself. 



  • Mon, Oct 5 2015 11:09 AM In reply to

    Re: Determining marital property

    juliet1:
    If I have some personal savings from before marriage would I still qualify for alimony? Is alimony based on being able to maintain the circumstances I have been accustomed to?

    From section 61.08(2) of the Florida Statutes:

    (2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:

    (a) The standard of living established during the marriage. (b) The duration of the marriage. (c) The age and the physical and emotional condition of each party. (d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each. (e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party. (g) The responsibilities each party will have with regard to any minor children they have in common. (h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment. (i) All sources of income available to either party, including income available to either party through investments of any asset held by that party. (j) Any other factor necessary to do equity and justice between the parties.
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