Can Assets Be Distributed Before a Divorce Is Final?
The repercussions of divorce do not wait for the court’s decree before exerting a substantial impact on the lives of each spouse. Once the decision to end the marriage is made, immediate consequences follow that influence all aspects of the couple’s life, from living arrangements to finances and parenting. This fallout can be particularly hard to weather for spouses with limited income and no independent financial resources to sustain them until the divorce is finalized. This reality can make the prospect of divorce feel impossible, even if this result is best. Typically, property settlements are not awarded until the divorce is granted, a process that can take months to complete, and does not account for an emergency or urgent circumstance that may call for some resolution sooner. This timeline could put a spouse with limited means in dire straits that reverberate long after the divorce is over. One way to obtain access to marital assets before the divorce is finalized is to request an interim partial distribution, which, if granted, would give one spouse rights to a portion of his/her share while the case is still pending. The procedure for this request is quite technical, and this possibility is still subject to the general rules for property division in divorce. An overview of how marital property is divided, and when a court may be willing to award a partial distribution before the case is concluded, will follow below.
Property Division in Divorce
All marital property is subject to division in divorce, unless a prenuptial agreement states otherwise, the allocation of assets and liabilities is approximately equal in most cases. The presumption is in favor of an equal division, but the law is more concerned with finding an equitable or fair outcome, and includes a number of factors courts are instructed to use when assessing how property should be distributed. As noted above, property awards do not go into effect until the divorce decree is issued, and some require additional orders, particularly retirement accounts, that take even more time to settle. Further, if property is ordered sold, and the proceeds divided, this step will also increase the time it will take to realize the financial benefit of the property award. Thus, the actual amount of time it could take to receive an asset is quite considerable. The length of the process, and the occurrence of unexpected or pressing events, are some of the principal reasons behind the option to award a partial distribution.
Partial property distributions are not the norm in divorce cases, but may be necessary if, for example, one spouse has control of all or most liquid assets, or a spouse is worried the other may waste or dissipate the asset before the divorce case is settled. In order to successfully petition for a partial distribution, a spouse will need to present facts that demonstrate “good cause” or extraordinary circumstances in a sworn statement. Further, the classification of marital and non-marital assets must be complete, and any asset distributed under an interim order will count against the spouse’s overall share of the marital estate. In addition, the court must also find a partial distribution will not prejudice either spouse’s claim for support or attorney’s fees. Failure to follow the statute’s requirements for these petitions can be used to challenge this request, so an experienced divorce attorney should be consulted about how to best present it to the court.
Speak with a Florida Divorce Attorney
Divorce property settlements are one of the most important parts of ending a marriage, and taking steps to get the best possible outcome is critical to future financial security. If you have questions about dividing your assets and debts with a spouse, talk to the attorneys at All Family Law Group, P.A. Our knowledge can help you secure an appropriate settlement and avoid future litigation. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-672-1900 for a consultation at no charge or email us.
by Lynette Silon-Laguna Google+