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Florida Marital Legal Separation and Property Settlement Agreement for...
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Legal Agreement Divorce FAQ
Yes, it is mandatory. Each party must obtain independent legal advice prior to signing a separation agreement. You also cannot use the same lawyer and should not use the same law firm. If you fail to obtain advice from a lawyer, the separation agreement will be unenforceable.
Couples going through a divorce must decide how to divide their property and debtsor ask a court to do it for them. Under California's community property laws, assets and debts spouses acquire during marriage belong equally to both of them, and they must divide them equally in a divorce.
What is a Legal Separation in General? In the states that provide it, a legal separation is a proceeding that mimics a divorce proceeding in that parties can ask the court to enter child support orders, make custody determinations, and order that one spouse pay the other spousal support.
Unlike some other states, Florida does not formally recognize a legal separation. If you want to separate from your spouse that is, live apart but remain married you are able to do so without filing any special form or petition with the court.
In Alberta, the Court applies the Matrimonial Property Act (MPA) to divide assets fairly. The MPA only applies to legally married spouses in Alberta. It does not apply to individuals in a common-law relationship. So, following a divorce or legal separation, who gets to keep the house?
No, Florida is one of a handful of states that doesn't offer legal separation as a formal legal process. Within the state, spouses can live separate and apart from each other without the need for a court order, which can be beneficial if you wish to avoid divorce for religious, social, or financial reasons.
Yes, dating while separated is not unlawful in Florida, but just because it is not prohibited does not necessarily make it a good idea to start seeing other people soon after the divorce papers are filed.
There is no necessity to be separated before you divorce in Florida. Indeed you must be a resident of the State of Florida for at least 6 months before you can file for a Dissolution of Marriage...
Though the term non-marital property often refers to any personal or real property owned prior to, and brought into the marriage, it can also refer to things such as inheritances and gifts made to only one spouse.
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General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective when signed, or may ne entered into after the divorce is filed.
In divorce property division, Florida follows the theory of equitable distribution. In the absence of an agreement, the court will make an "equitable" distribution of the property and assets of the marriage based on the circustances of the parties. A Separation and Property Agreement that is fair, equitable and grounded in full disclosure by the parties will be enforced by the court.
Statutes:
Florida Statutes
Title VI Civil Practice and Procedure
Chapter 61 Dissolution Of Marriage; Support; Custody
Equitable distribution of marital assets and liabilities:
(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(a) The contribution to the marriage by each spouse,
including contributions to the care and education of the children and services
as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities
of either party.
(e) The contribution of one spouse to the personal career
or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an
interest in a business, corporation, or professional practice, intact and
free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement,
and production of income or the improvement of, or the incurring of liabilities
to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence
for any dependent child of the marriage, or any other party, when it would
be equitable to do so, it is in the best interest of the child or that
party, and it is financially feasible for the parties to maintain the residence
until the child is emancipated or until exclusive possession is otherwise
terminated by a court of competent jurisdiction. In making this determination,
the court shall first determine if it would be in the best interest of
the dependent child to remain in the marital home; and, if not, whether
other equities would be served by giving any other party exclusive use
and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction
of marital assets after the filing of the petition or within 2 years prior
to the filing of the petition.
(j) Any other factors necessary to do equity and justice
between the parties.
(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor's estate to the obligee or the obligee's estate, unless otherwise agreed to by the parties.
(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(a) Clear identification of nonmarital assets and
ownership interests;
(b) Identification of marital assets, including the individual
valuation of significant assets, and designation of which spouse shall
be entitled to each asset;
(c) Identification of the marital liabilities and designation
of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or
the reviewing court of the trial court's rationale for the distribution
of marital assets and allocation of liabilities.
(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.
(5) As used in this section:
(a) "Marital assets and liabilities" include:
1. Assets acquired and liabilities incurred during
the marriage, individually by either spouse or jointly by them;
2. The enhancement in value and appreciation of nonmarital
assets resulting either from the efforts of either party during the marriage
or from the contribution to or expenditure thereon of marital funds or
other forms of marital assets, or both;
3. Interspousal gifts during the marriage;
4. All vested and nonvested benefits, rights, and funds accrued
during the marriage in retirement, pension, profit-sharing, annuity, deferred
compensation, and insurance plans and programs; and
5. All real property held by the parties as tenants by the
entireties, whether acquired prior to or during the marriage, shall
be presumed to be a marital asset. If, in any case, a party makes a claim
to the contrary, the burden of proof shall be on the party asserting the
claim for a special equity.
(b) "Nonmarital assets and liabilities" include:
1. Assets acquired and liabilities incurred by either
party prior to the marriage, and assets acquired and liabilities incurred
in exchange for such assets and liabilities;
2. Assets acquired separately by either party by noninterspousal
gift, bequest, devise, or descent, and assets acquired in exchange for
such assets;
3. All income derived from nonmarital assets during the marriage
unless the income was treated, used, or relied upon by the parties as a
marital asset; and
4. Assets and liabilities excluded from marital assets and
liabilities by valid written agreement of the parties, and assets acquired
and liabilities incurred in exchange for such assets and liabilities.
(6) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.
(7) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse's individual property; affect the laws of descent and distribution; or establish community property in this state.
(8) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.
(9) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time. Section 61.075.
Case Law:
It is well settled that "[a] pure property settlement agreement is not subject to modification by the trial court without the consent of the parties." Kirchen v. Kirchen, 484 So.2d 1308, 1311 (Fla. 2d DCA 1986). However, a property settlement agreement which also makes provision for periodic alimony is separable and modifiable insofar as the support portion of the agreement is concerned. Jantzen v. Cotner, 513 So.2d 683 (Fla. 3d DCA 1987).
The nature of the agreement must be determined by an examination of the language of the agreement, the surrounding circumstances, and the parties' apparent purpose when they entered into the agreement. Underwood v. Underwood, 64 So.2d 281, 288 (Fla.1953). The test for determining when periodic payments constitute support or a methodology for division of property, seems to be whether the payor spouse's payments are given in exchange for a reciprocal exchange of property interests from the recipient spouse. In other words, the question is whether the recipient spouse bought and paid for the payments and is therefore entitled to receive them as written as a matter of contract. See Salomon v. Salomon, 196 So.2d 111 (Fla. 1967).
A party seeking modification of a property settlement agreement
must satisfy the heavy burden of showing that the settlement is the product
of fraud, duress, misrepresentation, or overreaching, or that the
settlement is unfair or unreasonable.
Work v. Provine, 632 So.2d 1119, 1121 (Fla. 1st DCA 1994).
Property settlement agreements are not subject to modification when the agreements are incorporated into final judgments of dissolution of marriage, Karch v. Karch, 445 So.2d 1077 (Fla. 3d DCA 1984).
A true property settlement agreement, in which one party gives up valuable property rights in exchange for the right to receive periodic payments, is not subject to modification. Hughes v. Hughes, 553 So.2d 197 (Fla. 2d DCA 1989).
Generally speaking, in the absence of a specific reservation of jurisdiction to make a later adjudication of property rights, a lower court does not have jurisdiction to modify property rights after an adjudication of those rights has been made in a judgment of dissolution. Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988). Modification of a property settlement incorporated into a final judgment of dissolution may only be had if the party seeking modification can satisfy the exceptionally heavy burden of showing that the settlement is the product of fraud, duress, deceit, misrepresentation, or overreaching, or that the settlement is unfair or unreasonable. McMahan v. McMahan, 567 So.2d 976 (Fla. 1st DCA 1990).
Even if a specific reservation of jurisdiction is made, it has been held that such only affords a court authority to address property rights not previously settled by the final judgment. Brandt v. Brandt, 525 So.2d 1017 (Fla.4th DCA 1988).
Where the agreement contains a provision by which each of the parties have explicitly waived the right to seek modification of the alimony payments. Such a provision removes any basis for the court to ignore their valid and binding contract. Hughes v. Hughes, 553 So.2d 197 (Fla. 2d DCA 1989).
Unless both spouses have separate counsel at the time of preparation and execution of the agreement, the marital relationship remains in a non-adversarial stance, and each party has fiduciary-like responsibility to the other. Fleming v. Fleming, 474 So.2d 1247,1249 (Fla. 4th DCA 1985); Baker v. Baker, 394 So.2d at 468.
General Summary: Separation and Property Agreements may be entered into before a divorce is filed to be effective when signed, or may ne entered into after the divorce is filed.
In divorce property division, Florida follows the theory of equitable distribution. In the absence of an agreement, the court will make an "equitable" distribution of the property and assets of the marriage based on the circustances of the parties. A Separation and Property Agreement that is fair, equitable and grounded in full disclosure by the parties will be enforced by the court.
Statutes:
Florida Statutes
Title VI Civil Practice and Procedure
Chapter 61 Dissolution Of Marriage; Support; Custody
Equitable distribution of marital assets and liabilities:
(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(a) The contribution to the marriage by each spouse,
including contributions to the care and education of the children and services
as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities
of either party.
(e) The contribution of one spouse to the personal career
or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an
interest in a business, corporation, or professional practice, intact and
free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement,
and production of income or the improvement of, or the incurring of liabilities
to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence
for any dependent child of the marriage, or any other party, when it would
be equitable to do so, it is in the best interest of the child or that
party, and it is financially feasible for the parties to maintain the residence
until the child is emancipated or until exclusive possession is otherwise
terminated by a court of competent jurisdiction. In making this determination,
the court shall first determine if it would be in the best interest of
the dependent child to remain in the marital home; and, if not, whether
other equities would be served by giving any other party exclusive use
and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction
of marital assets after the filing of the petition or within 2 years prior
to the filing of the petition.
(j) Any other factors necessary to do equity and justice
between the parties.
(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor's estate to the obligee or the obligee's estate, unless otherwise agreed to by the parties.
(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(a) Clear identification of nonmarital assets and
ownership interests;
(b) Identification of marital assets, including the individual
valuation of significant assets, and designation of which spouse shall
be entitled to each asset;
(c) Identification of the marital liabilities and designation
of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or
the reviewing court of the trial court's rationale for the distribution
of marital assets and allocation of liabilities.
(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.
(5) As used in this section:
(a) "Marital assets and liabilities" include:
1. Assets acquired and liabilities incurred during
the marriage, individually by either spouse or jointly by them;
2. The enhancement in value and appreciation of nonmarital
assets resulting either from the efforts of either party during the marriage
or from the contribution to or expenditure thereon of marital funds or
other forms of marital assets, or both;
3. Interspousal gifts during the marriage;
4. All vested and nonvested benefits, rights, and funds accrued
during the marriage in retirement, pension, profit-sharing, annuity, deferred
compensation, and insurance plans and programs; and
5. All real property held by the parties as tenants by the
entireties, whether acquired prior to or during the marriage, shall
be presumed to be a marital asset. If, in any case, a party makes a claim
to the contrary, the burden of proof shall be on the party asserting the
claim for a special equity.
(b) "Nonmarital assets and liabilities" include:
1. Assets acquired and liabilities incurred by either
party prior to the marriage, and assets acquired and liabilities incurred
in exchange for such assets and liabilities;
2. Assets acquired separately by either party by noninterspousal
gift, bequest, devise, or descent, and assets acquired in exchange for
such assets;
3. All income derived from nonmarital assets during the marriage
unless the income was treated, used, or relied upon by the parties as a
marital asset; and
4. Assets and liabilities excluded from marital assets and
liabilities by valid written agreement of the parties, and assets acquired
and liabilities incurred in exchange for such assets and liabilities.
(6) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.
(7) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse's individual property; affect the laws of descent and distribution; or establish community property in this state.
(8) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.
(9) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time. Section 61.075.
Case Law:
It is well settled that "[a] pure property settlement agreement is not subject to modification by the trial court without the consent of the parties." Kirchen v. Kirchen, 484 So.2d 1308, 1311 (Fla. 2d DCA 1986). However, a property settlement agreement which also makes provision for periodic alimony is separable and modifiable insofar as the support portion of the agreement is concerned. Jantzen v. Cotner, 513 So.2d 683 (Fla. 3d DCA 1987).
The nature of the agreement must be determined by an examination of the language of the agreement, the surrounding circumstances, and the parties' apparent purpose when they entered into the agreement. Underwood v. Underwood, 64 So.2d 281, 288 (Fla.1953). The test for determining when periodic payments constitute support or a methodology for division of property, seems to be whether the payor spouse's payments are given in exchange for a reciprocal exchange of property interests from the recipient spouse. In other words, the question is whether the recipient spouse bought and paid for the payments and is therefore entitled to receive them as written as a matter of contract. See Salomon v. Salomon, 196 So.2d 111 (Fla. 1967).
A party seeking modification of a property settlement agreement
must satisfy the heavy burden of showing that the settlement is the product
of fraud, duress, misrepresentation, or overreaching, or that the
settlement is unfair or unreasonable.
Work v. Provine, 632 So.2d 1119, 1121 (Fla. 1st DCA 1994).
Property settlement agreements are not subject to modification when the agreements are incorporated into final judgments of dissolution of marriage, Karch v. Karch, 445 So.2d 1077 (Fla. 3d DCA 1984).
A true property settlement agreement, in which one party gives up valuable property rights in exchange for the right to receive periodic payments, is not subject to modification. Hughes v. Hughes, 553 So.2d 197 (Fla. 2d DCA 1989).
Generally speaking, in the absence of a specific reservation of jurisdiction to make a later adjudication of property rights, a lower court does not have jurisdiction to modify property rights after an adjudication of those rights has been made in a judgment of dissolution. Harman v. Harman, 523 So.2d 187 (Fla. 2d DCA 1988). Modification of a property settlement incorporated into a final judgment of dissolution may only be had if the party seeking modification can satisfy the exceptionally heavy burden of showing that the settlement is the product of fraud, duress, deceit, misrepresentation, or overreaching, or that the settlement is unfair or unreasonable. McMahan v. McMahan, 567 So.2d 976 (Fla. 1st DCA 1990).
Even if a specific reservation of jurisdiction is made, it has been held that such only affords a court authority to address property rights not previously settled by the final judgment. Brandt v. Brandt, 525 So.2d 1017 (Fla.4th DCA 1988).
Where the agreement contains a provision by which each of the parties have explicitly waived the right to seek modification of the alimony payments. Such a provision removes any basis for the court to ignore their valid and binding contract. Hughes v. Hughes, 553 So.2d 197 (Fla. 2d DCA 1989).
Unless both spouses have separate counsel at the time of preparation and execution of the agreement, the marital relationship remains in a non-adversarial stance, and each party has fiduciary-like responsibility to the other. Fleming v. Fleming, 474 So.2d 1247,1249 (Fla. 4th DCA 1985); Baker v. Baker, 394 So.2d at 468.