Equitable Distribution: The Marital Interest in a Non-Marital Property or Premarital Home

As couples marry later in life or have second marriages, one or both of the parties may already own a home. As a result, in many divorce cases, the parties live in a home owned solely by one of the parties.  In these cases, a common question is whether the non-owner spouse has any interest in the home.

 

Equitable distribution in Florida is governed by section 61.075, Florida Statutes.  When dealing with the division of a couple’s assets and liabilities, the first step in the analysis is for the court to set aside any non-marital assets and liabilities.  The court is then tasked with distributing the marital assets and liabilities between the parties, with the premise that such assets and liabilities should be divided equally.

 

Under section 61.075(6)(a)(1)(b), Florida Statutes, marital assets are defined to include 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.”

 

If marital funds are used to enhance a non-marital asset, the value the enhancement is therefore marital. Accordingly, if the parties built a home on non-marital property, the enhanced value relating to the structure is marital.  The relevant statutory language also clearly provides that, under certain circumstances, the appreciation of a non-marital asset is indeed a marital asset. See Kaaa v. Kaaa, 58 So. 3d 867, 870 (Fla. 2010).  In particular, the passive appreciation of a non-marital asset, such as a home, is properly considered a marital asset where marital funds or the efforts of either party contributed to the appreciation.  Id.  The Florida Supreme Court has held that, if one party uses marital funds to pay the mortgage on a non-marital property and the non-owner spouse makes “contributions” to the property, some portion of the passive appreciation on the home is subject to equitable distribution.  Id. at 871.  

 

The Florida Supreme Court adopted the following methodology for determining how the appreciated value is properly allocated between the parties:

If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a) 2, Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.

See Kaaa, 58 So. 3d at 872.

 

Thus, when non-marital real property is encumbered by a mortgage that was paid by marital funds, a pro-rata portion of the passive appreciation in the property’s value that accrues during the course of the marriage is a marital asset subject to equitable distribution.

 

If you have questions concerning your Florida equitable distribution or property division rights, please contact an experienced Tampa family law attorney.

 

By Richard Mockler

Single Parenting: Tips on Being a Better Father

Parenting is one of life’s greatest challenges. And, being a single parent can be even harder. A single father can experience all of the frustrations of single parenting, coupled with the feeling that, as a parent, he is on the outside looking in. A single father may even feel alienated from his own children.  If you find yourself in this situation, adopt some strategies for success:

Keep the Peace and Be Respectful

Accept that you and your children are better served by keeping the peace.  When you are co-parenting, always keep your cool.  You may not receive the respect you deserve, but you will always receive more respect if you are kind and patient.  Treat people involved in the lives of your children with consideration, even when you are upset or you might think they don’t deserve it. In addition to their mom, this applies to grandparents, family members, friends, neighbors, teachers, counselors, and others.

One of the worst decisions you can make as a father is losing your temper.  Remember, you are asking others to trust you with these children.  And, you want your children to feel safe and comfortable with you.  Aggressive conflict will only make things worse on you and your kids, regardless of who is right, who is wrong, or who “started it.”

This is not to say that you should not stand up for yourself or your children.  But, as a father, your voice will be better heard if you speak with reason, respect, and restraint.  Yelling and blaming will not resonate with anyone, especially your children or their mom.  And, your children will look to your actions as a model for addressing the challenges they face in life. Set the right example for them.

Be a Good Communicator

Many fathers complain that they do not get important information about their children. Fathers certainly have the right to know what is going on with their kids.  Unfortunately, some dads take the wrong approach in getting the information they seek.

The quality of information you get frequently depends on how you ask for it. It’s easier to respond to a friendly inquiry from a caring co-parent than it is to respond to a demand or an email laced with criticism or accusations. Also, be patient and allow a reasonable time for a response.

If you are requesting information nicely and getting nowhere, make written requests.  Make the tone of the request civil and keep the scope of the request focused.  For example, “I left you a voicemail earlier today asking when and where the dance recital will take place.  Can you please let me know?  I am looking forward to seeing her perform.”

Also, remember that you can get information from other sources.  If you show up to dance practices, you can ask anyone when and where the recital will be.  If you have a history of attending appointments at the pediatrician’s office, you will usually have no problem getting information directly from the doctor or the staff if your child is sick.  If you attend events at the school, such as open house and parent teacher conferences, you are far more likely to be copied on emails and correspondence pertaining to your kids.  In other words, if you are directly involved in your kids’ activities, you won’t have to worry about whether you are “in the loop.”

Also, be sure to share information when you have it.  Concerned moms sometimes ask lots of questions about dad’s plans for the weekend.  Answer them.  Tell her your plans.  If you don’t have a plan for the whole weekend, tell her what you do know.  For example, tell her that you’re going to pick up the kids after school and decide together where to eat dinner. Let her know once you come to a decision.  Giving information helps you to receive information.

Insulate the Children from Negativity

Children learn from their parents’ behavior. The way you think and act will no doubt influence the way your children think and act.  Most parents would like their children to be patient, appreciative, loving, and respectful.  Make sure that your actions are setting the right example.

Your children should want to spend time with you.  The best way to make this happen is to make your children feel comfortable. Expressing negativity about others can backfire.  For example, if you express negativity about their mother, your children may develop negative feelings about their time-sharing with you. Many fathers do not understand that making negative statements about the kids’ mother may end up adversely affecting their own relationship with the children. Do not involve your children in the divorce. They should not be encouraged to judge who is right or wrong. Kids should just appreciate having two parents.

Avoid yelling at your kids or making them feel guilty.  If they are running into the street, then yell! Otherwise, being firm is usually good enough.  It’s understandable to raise your voice at your kids or bark at them from time-to-time.  But, keep it to a minimum.  Have rules at home, but make your kids feel safe and comfortable with you.  If you have to enforce rules, remind your kids how much you love them and explain that you have rules and consequences because you love them.

Do Positive Things With and For Your Children

When you have your kids, focus on doing positive things together. Help with their homework. Learn a new skill. Build something or work on an art project.  Sit down with your daughter and put together a puzzle. Help your son learn to tie his shoes.  Your kids will base their feelings about you more on the everyday things you do together, rather than what you say. In other words, actions speak louder than words.

Your kids will love and appreciate you most when they see that you care for them.  Pack their lunch before school.  Make them dinner when you come home.  Give them their medicine. Encourage them to take a vitamin every day.  Don’t concede these tasks to their mom or your new partner.  Your kids should not see that you let someone else be in charge of their health or wellness.  You absolutely cannot delegate these critical parenting tasks to women and then expect to be seen by anyone as an equal parent.  Kids will always remember their dad cooking for them or taking a strong interest in their wellness.

These simple contributions are far more important than taking your kids to Disney or buying them presents.  Having fun is important.  And, children may appear to respond positively to purchases.  But, it’s far more important to help your daughter with her class project or hold your son’s hand while he is getting a shot at the doctor’s office.  Dressing your kids and making their meals and other routine tasks foster more goodwill than vacations or presents.

Have Important Conversations with Your Children

Kids want to talk to their parents.  This is more likely to make the kids feel loved than telling them that you love them.

Sit down and listen to their stories.  Let your daughter tell you what’s on her mind. Encourage your son to tell you about his day at school.  Ask questions that show you care. What did you work on at school today?  What was your favorite thing that happened today? Who did you play with today?  Did you learn anything new?  Did anything bother you today?

You can also talk to your children about topics.  Kids like to discuss age appropriate topics. Teach your kids about something they may not understand.  Talk to them about geography.   Explain about cities, states, and countries.  Explain that the world is round.  Discuss how plants grow.  Talk about animals that live in different environments.  Tell them about life before the Internet and iPads.

Know Important Information About Your Kids

A good father knows about his children. If you want people, including your kids, to respect you as a father, you need to know the things that an involved parent knows.

Know what size shoe your son wears.  Know your daughter’s dress size.  Know where she takes dance or piano.  Know what type of dance class she is in.  Know what’s going on at the school.  Volunteer.  Attend school sponsored events that take place during your parenting time.  Offer to attend even if it’s not your night.  Go to parent-teacher conferences.  Know where your child is struggling.  Know where your child excels.  Know their teacher.  Know the teacher’s email address. Know their friends.

Know the name of the pediatrician and dentist. You should know about any medications your children take.  Know the dosage.  Know the rights time(s) to take it.  Keep this information on your smart phone if you can’t remember.

Being a good father starts with all the tasks that you would teach your children.  Listen.  Be respectful.  Don’t lose your temper. Mind your manners. Communicate.  Play nicely with others.

Be Flexible About the Schedule and Communications with the Children

It’s important for both parents to be flexible regarding the time-sharing schedule. Be willing to swap nights or change the schedule to accommodate others. Do this even if the other parent hasn’t been flexible in the past. After you establish a pattern of being flexible, it’s easier to ask for the same in return.

The same rationale goes for FaceTime, Skype, or phone communications with the kids. Maintaining a routine or regular time for these communications is usually best, but be understanding if you miss a night here or there. And, be willing to schedule the call at a time that works better for your kids or their mom

Be Open to Advice from Professionals

There are a number of professionals that may become involved in your lives. Your children may be in need of family therapy following a divorce. You and the mother may need a parent coordinator to help you work through parenting issues. You and one of your children may be in need of reunification therapy if you have not been involved for an extended period of time.

If a psychologist, therapist, or parent coordinator is involved with your children, you should be open to participating in the parent coordination, counseling, or therapy process. Many fathers are reticent to get involved with these professionals. You should not assume that these professionals are going to be against you. Many times, a psychologist or parent coordinator will understand your situation and help you come up with strategies that will benefit your children.

If you have questions about your rights or responsibilities as a parent, contact an experienced Tampa fathers rights attorney.

By: Richard J. Mockler

Unrealistic Expectations in Divorce

Inappropriate expectations are part of everyday life.  Consumers buy products that are too small to do the job.  Businesses hire employees that lack relevant experience.  Travelers book bargain hotels expecting a four-star room.  In short, people frequently fail to understand what they should reasonably expect.

Expectations also run rampant in relationships.  Some men expect their wife to work full-time, look pretty, stay in shape, maintain the house, take care of the kids, do the laundry, have a nice dinner ready when he gets home, and then have enough energy left to wow him in the bedroom.  Some women expect men to earn lots of money, work extremely hard, be romantic, remind her of how beautiful she is, defer to her on all parenting and decorating decisions, never lose his temper, discard his friends, ignore his hobbies and interests, and enjoy watching Sweet November.  These expectations are at the root of many failed relationships.

My experience as a Tampa divorce attorney and Florida Supreme Court Certified Family Mediator has revealed that expectations are especially unrealistic in divorce.  These expectations are often built from consulting a network of family, friends, and co-workers who offer advice based on tall tales.  Women sometimes seek out and consult “divorce mavens” who they perceive were “successful” in their divorce.  The divorce maven is almost always willing to share her personal “success story,” which necessarily came at the expense of someone that she once loved.  In the “success story,” the stereotype is that the wife won full custody of the kids, she got the marital home, she was awarded long-term or permanent alimony, and the father was allowed to visit the kids every other weekend, except when she needed child care and allowed him additional time (but no Sunday nights, ever).  In some cases, the wife also received a domestic violence injunction or obtained an order subjecting the father to supervised visitation.

This paradigm of “success” in divorce creates unrealistic expectations in much the same way that photo-shopped pictures of skinny models with perfect skin create unrealistic expectations about how a woman should look.  And, the results of these expectations are similarly disappointing and destructive.  Unrealistic expectations in divorce create unnecessary conflict, increased attorneys’ fees, longer and more drawn-out cases, and risk.

Even in marriages with nearly equal income, some mothers will ask about their alimony rights, which they perceive are biologically-determined rather than based on the Florida alimony factors set forth in section 61.08, Florida Statutes.  Similarly, some women in short-term marriages have an expectation of alimony, even where the marriage was temporally equivalent to a serious high school relationship.

With respect to child custody disputes, many women still feel an absolute right to have “full custody” of the child, regardless of the father’s parenting skills, track record, kindness, or ability.  Today, with lawmakers and judges recognizing father’s rights, this sort of blind expectation is akin to expecting minorities to sit at the back of the bus.  Additionally, some mothers feel that child support is an absolute right, even where the parties’ incomes are equal, the father has substantial time-sharing with the children, and the father pays out-of-pocket expenses such as daycare and health insurance.

There are also predatory divorce lawyers who feed on these expectations.  This may come as a surprise to some attorneys, but married people – even those going through a divorce – frequently talk about the advise they receive from their lawyers.  And, if a party says, there is no way your lawyer told you that you will get everything in the divorce, the Wife might forward on the email from her attorney saying just that.  These attorneys perpetuate unrealistic expectations.  They also disappoint expectations in most of their cases.  But, they typically make a lot of money for both lawyers along the way.

If you couldn’t meet her expectations during the marriage, you probably won’t be able to meet them in the divorce.  You need an experienced advocate who will protect your legal rights.  You need a Tampa fathers rights attorney who will fight for you.  Please contact us at (813) 331-5699 to schedule a consultation.

By Richard J. Mockler