Knowledgeable Miami Attorneys Manage Real Estate Division in Florida Divorce
Trustworthy guidance throughout the equitable distribution process
At Rafool, PLLC, we have experience with high-net-worth divorces in Miami involving couples with multiple properties and divorces involving smaller marital estates in which the greatest asset is a modest home. When it comes to the equitable distribution of marital property, certain assets stand out. Disputes over real estate can be particularly complex for several reasons. Every tract is a unique asset, and valuations can vary depending on whom you ask. Plus, the value of a single asset, like the family home, may dwarf the rest of the marital estate, making a fair sharing of marital wealth impossible if one of the spouses retains the home. Real property often comes with liabilities that must also be shared fairly. For all these reasons, you need a capable and experienced divorce lawyer to manage your property settlement. We know how to protect your rights to real property, and we work tirelessly to achieve the best possible result.
Step one: Is the real estate marital property?
The first step in the equitable distribution process is to determine whether a piece of real estate is marital property or the separate property of one spouse. You might think that the answer can be found simply by looking at the deed. If one spouse’s name is on the deed, especially if the property was bought before the marriage, the property is bound to be separate. Unfortunately, the answer is not quite that simple. Even if the real estate is in the name of one spouse, it could still be marital property if:
- The spouse used marital assets to purchase the property or pay the mortgage.
- Income from the property went to pay household expenses or went into a common fund during the marriage.
- The owner spouse behaved as though the real estate was marital property.
- The other spouse contributed materially to an increase in the property value.
In short, the court will not simply look at when the property was acquired and by whom but will also look at the facts regarding how the property was used. Our Miami law firm will capably guide you through this process.
Estate planning strategies employed to protect the home can also backfire during a divorce. For example, in the case of Nelson v. Nelson, 2016 Fla. App. LEXIS 18470 (2nd DCA December 16, 2016), a husband, attempting to shield the family home from his creditors, created an irrevocable trust and named his wife as beneficiary. When the couple divorced, the court refused to treat the home as a marital asset subject to equitable distribution because the trust was the owner and the trust was not party to the divorce.
Assessing the value of real estate in a divorce
If the real estate is determined to be a marital asset, the next step is to ascertain its fair market value. This is a tricky proposition, because there are so many factors that could influence the price of property, including:
- How motivated the buyer and seller are
- How well-informed or well-advised both parties are
- Whether there is reasonable time allowed to let the market for the property work
- How payment is to be made
In light of these considerations, Florida courts tend to favor one of three methods of calculating value:
- The market or sales comparison approach — This compares the sales of similarly situated property.
- The income approach — This considers the amount of rental income a property could generate.
- The cost approach — This combines elements of construction pricing, accounting and land valuation to determine what it would cost to acquire and improve property to replicate the property in question.
In our practice, we consult qualified experts who are able to accurately assess a property’s value and refute erroneous valuations.
Distributing the family home in a Florida divorce
One of the most difficult areas of divorce is the disposition of the family home. For most couples, the home is the most valuable asset, and in many cases there is not enough wealth in the marital estate to offset an award of the house to one spouse. The logical solution would be to sell the home and divide the proceeds appropriately, but if the couple has children, the court is unlikely to order the house to be sold. Instead, what often happens is that a custodial parent, usually the mother, continues to live in the home with the children while the noncustodial parent continues to pay at least a portion of the mortgage. If this type of situation is not handled properly, one spouse could enjoy all the benefits of the property while the other takes on most or all of the liabilities.
As your determined advocates, we go to great lengths to prevent unfair outcomes in real estate distribution so you can receive a truly equitable share of your marital property.
Contact our Miami divorce lawyers for answers about real estate distribution
If you are a property owner going through a divorce, Rafool, PLLC can help to protect your rights to various real estate holdings, especially your family home. For immediate assistance, call us at (305) 567-9400 or contact our Miami office online to schedule an initial consultation.