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In Florida, how are marital assets determined if separated for extended time?

Oviedo, FL |

My wife and I have been separated for 6 years. Since FL doesn't recognize legal separation, what portion of my 401k is she entitled to? Will it be half of the balance at the time when we separated or half of the current balance?

Attorney Answers 3

  1. In Florida, 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. (See §61.075(6), Florida Statutes). Under this analysis, absent a valid separation agreement, you would use the current balance. I would still make sure to have an attorney review all of this with you in person; particularly if you have significant assets. One thing to keep in mind is that with the exception of child support, everything is negotiable in your divorce matter. Do not be penny wise/pound foolish by trying to save money and do it yourself. Such advice almost always ends up costing clients more in the long run. Good luck!

    Please be advised that any answers or information disseminated above do not constitute legal advice and that the attorney responsible for this posting is merely attempting to participate in a Q & A session intended to be helpful but certainly not intended to be legal advice. It is important that you understand that no attorney-client relationship has been formed and that the attorney has no obligation to follow up with you with your legal issue unless you separately contact said attorney and arrange for him to legally represent you.

  2. I agree with my peer. Mediation is your best bet.

    This information is a general answer and is not specific to any particular case. Carin Manders Constantine, Esq. 727-456-0032/ 727-488-8272

  3. Without a valid legal separation agreement, the date of filing the petition is normally used for valuation purposes. Pursuant to the statute and case law, however, it can be argued that there was an earlier separation date, and it is ultimately up to the judge to decide the date of valuation as the discretion then lies with the court. I have attached a 5th DCA case that discusses these issues pretty well.

    Just remember that there is always agreements that can be made, mediations to attend, and plenty of opportunities to settle or resolve a case prior to it going to a judge for determination.

    I would recommend consulting with an attorney in your area to discuss further. Many great attorneys can be found here on Avvo and offer free consultations, myself included.

    /s/ Ophelia Bernal-Mora, Esquire
    Law Office of Ophelia Bernal-Mora, P.A.
    37 N. Orange Avenue, Suite 500
    Orlando, FL 32801
    PH: (407) 354-5223

    You should consult an attorney for advice regarding your individual situation since every case is different and not all information is relayed in an online question. The Law Office of Ophelia Bernal-Mora, P.A. is a family & criminal law firm located in Orlando, Florida, we invite you to contact us and welcome your calls at 407-354-5223. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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