March 15, 2013 ·
By Mike Gora
Until recently it was very difficult if not impossible for a circuit court judge to distribute marital property and liabilities before trial. There are reasons to wait for all other issues to be determined before distribution.
There is an inherent interrelationship between the distributed property and the income which might be earned through the distributed asset, especially if the asset is intangible, like a brokerage account.
On the other hand there always seemed to be special circumstances when a preliminary distribution was a good idea. On rare occasion circuit judge exercised his or her discretion in making an early partial distribution.
Florida statute 61.075 has recently been amended to allow a judge to make such an early distribution. A sworn motion must be filed by a party seeking such relief. The motion must point out why such relief was needed by one party or the other, or for the best interest of both, or the court’s best interest.
An example might be found when both sides have filed motions for temporary support and both have alleged that the other has control of all assets. In order to obtain this relief particular assets must be found to be marital without question and of a certain value and origin.
It may become necessary to equally divide and distribute marital property early if there is no other source of funds to support the family’s daily needs, or the need for both sides to retain counsel.
If either the husband or wife had clearly used self help immediately before the case was filed, leaving the other without the ability to hire counsel a distribution, equal to the removed asset might be in order.
Once a motion has been filed by either side an evidentiary hearing must be held by the judge who will hear evidence backing up the allegations set out in the verified motion, and a defense responding to the arguments of the motion.
Scheduling such a hearing depends on the judge’s schedule or docket. Under local rules it is unlikely that such a mater should be set on an emergency basis, but may be considered urgent by the judge.
The ability of a judge to make such an early distribution might help the parties and the court avoid a string of more costly hearings and provides the judge with an additional tool.
Michael H. Gora, divorce lawyer, has been certified by the Board of Specialization and Education of The Florida Bar as a specialist in family and matrimonial law and is a partner in the law firm of Shapiro Blasi Wasserman & Gora PA in Boca Raton. Gora may be reached at (561) 477-7800.
By Online Staff