Question: I bought my house 5 mos before I got married, now 18 years later I want to get a divorce, is my husband entitled to 1/2 of house -the house is payed for, and I am divorcing him because he is an alcoholic and spends all his money on drinking - I always bought everything that was needed for the house?

In a divorce, one of the more difficult areas for divorce attorneys may be determining the distribution of the parties' assets.  First it must be determined what assets are non-marital.  Normally, if an asset is purchased prior to the marriage then it would be considered premarital property and the party who purchased it prior to the marriage will receive it, except as stated in Fla. Statute § 61.075 (6)(a)1.b.: "The enhancement in value and appreciation of non-marital 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."

In this case, the purchase of a house prior to marriage would make it non-marital, unless the value and appreciation of the house has resulted from either the contribution or expenditure of marital funds.  For example, the payment of the mortgage from marital funds would mean that the increase in value due to the payments would be marital and subject to division in the divorce.  Fla. Statute § 61.075(6)(a)1.a. defines marital assets and liabilities as those acquired or incurred during the marriage, individually by either spouse or the spouses jointly. So any income, assets that you acquired individually during the marriage are considered marital and likewise for your husband.  Furthermore, if marital funds are used to enhance the value of the house, then the appreciated value would be subject to division.  In addition, if the value of the property increases due to the efforts (i.e. physical) of either party during the marriage than that increase is subject to division.  Note that it is only the appreciation of value which is subject to distribution.  The remainder of the equity in the home would remain with the party who purchased the home prior to marriage.

The court in determining distribution of marital assets and debts begins with the premise that they should be equally divided between the parties; however, the court also looks at the factors listed in Fla. Statute § 61.075(1) to determine if an unequal distribution is required.  You say in your question that you have always bought everything that was needed for the house.  Therefore, it is necessary to  determine whether one of the factors in § 61.075(1) will apply under your circumstances, so that you may obtain a larger division of the marital assets.  It would be beneficial to contact a knowledgeable divorce attorney who can help you get the best division of your assets considering all of the circumstances involved.

Visit our website for more information on property and debt distribution in divorce.

By Lynette Silon-Laguna

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Question: Does the victim of domestic violence win custody of a child?

The answer to the question is that it depends.  First, you need to know that there is civil domestic violence and there is criminal domestic violence and these are treated differently, so the answer would depend on which it is in your case.

 

If there is evidence of civil domestic violence or child abuse or there is an injunction for protection against domestic violence determined in a civil court, then this may be considered by the court as detrimental to the child.  It is one of the factors listed in Fla. Statute §61.13(3), which the court looks at when determining what is in the best interest of the child when establishing a parenting plan, including the timesharing of the children. What is in the best interests of the child is the criteria the court uses in all decisions regarding children.

   

If a parent has been convicted of a misdemeanor of the first degree or higher as defined in Fla. Statute §741.28 and §775, or meets the criteria of §39.806(1)(d), then under Fla. Statute §61.13(2)(c)2) this creates a rebuttable presumption of detriment to the child.  The convicted parent may rebut this presumption; however, unless this presumption is rebutted the court may not give the convicted parent shared parental responsibility, which includes timesharing or any decisions made regarding the child.   If this were to occur, then the other parent would have sole parental responsibility of the child and make all decisions regarding him or her.  The convicted parent may get some timesharing as the court determines would best protect from further harm the child or abused spouse.

 

In Florida, it is public policy that there is shared parental responsibility for the children by both of the parents.  When there is separation or divorce each is encouraged to share in the rights and responsibilities of having children.  There is no presumption for a certain timesharing plan or for or against the mother or father.  If the parents cannot agree on a parenting plan then it will be up to the court to determine the best parenting plan based upon the child’s best interest using the factors of  Fla. Statute §61.13(3).

 

By Lynette Silon-Laguna

 

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