Going through a divorce as a high net worth individual, you have a number of things to consider in trying to divide your life into two households. Businesses, houses, retirement plans, stocks, alimony, and support all come into play and present complicated circumstances the average person might not have to encounter. One of the best ways to prepare is to understand what to expect.
How Does Florida Divide Assets in a Divorce?
Florida follows the law of “equitable distribution,” meaning divorce courts in the state will sort out which property is marital and nonmarital and then divide the marital property according to what is most fair for both spouses. Generally, marital property is that which you acquired during the marriage, while nonmarital property you acquired before the marriage.
In deciding what is most fair for each spouse to receive from the marital property, the court overseeing your divorce will consider many aspects of your marriage, including:
- The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as a homemaker.
- The economic circumstances of the parties.
- The duration of the marriage.
- Any interruption of personal careers or education opportunities of either party.
- The contribution of one spouse to the personal career or education opportunity of the other spouse.
- The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
- The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the resident until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
- The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
- Any other factors necessary to do equity and justice between the parties.
What Will Happen to My Business?
One of the biggest considerations for a person going through a high net worth divorce is his or her business. Like other property, you first need to decide whether the business is marital property then figure out how to divide it if so.
In order to attempt to divide a business, it must first be valued. The leading method for valuing a Florida business during a divorce is hiring a forensic certified public accountant (CPA), who will appraise the value of the business by examining all the relevant aspects of the business, including the nature of the business, the size of the business, the business’ financial records, and the good will and reputation of the business.
Once the value has been assigned, assuming neither spouse wants to liquidate the business, the court overseeing your divorce will order a division of the business through one of the following means:
- Giving the business entirely to one spouse and offsetting the value by giving the other spouse other marital assets or alimony; or
- Giving a portion of the business to both spouses.
Do I Have to Split My Retirement Benefits?
Spouses will usually be entitled to a share of each other’s retirement benefits, even where one spouse has a larger account balance or where one spouse did not work outside of the home during the marriage. The court will also consider the nature of the retirement accounts, whether traditional, defined contribution, or defined benefit, and how much of the account balances is fully vested.
Defined-Contribution Plan
A defined-contribution plan is what ordinarily comes to mind first when people talk about retirement accounts. This includes 401k plans, IRAs, and Roth IRAs, where the employee sets aside money every pay period to be invested and eventually grown into a retirement fund. These set asides are also usually added to by the employer through some kind of profit sharing.
Defined-contribution plans are divided between the spouses based on what portion of the account balance is fully vested. For instance, if at the time of the divorce, a spouse’s 401k is 50 percent vested, and all of the money in the account was contributed during the marriage, the court will divide 50 percent of the balance. Importantly, the non-account holding spouse will not be entitled to additional money accrued in the account after completion of the divorce.
Defined-Benefit Plan
Defined-benefit plans usually involve pensions that require certain criteria to be met. The employee can expect to receive a set sum, often in regular payments, upon putting in a certain number of years with the employer. In dividing defined-benefit plans, the non-account holding spouse can take a monetary offset or can elect to receive payments from the account upon reaching retirement age.
Stock Options
High net worth individuals will often have stock options they need to consider dividing with their spouses. These options allow corporate employees to buy stock at a set price or receive a cash sum equal to stock shares after working a set amount of time, all while avoiding the regulatory caps placed on standard retirement plans. Employees thereby have the opportunity to make and save a great sum of money. Depending on when the stock options were bought or offered, they could be considered marital property that will need to be divided.
It is very important to remember the tax implications of retirement accounts and stock options, especially where the non-account holding spouse is accepting a money offset instead of a portion of the account. Retirement accounts are often tax delayed, meaning taxes have not been withheld from the money before it is placed in the account. When the account is eventually withdrawn, taxes will be taken out. For this reason, $100,000 in a 401k is not the same as $100,000 in cash. The court and spouses need to consider this when configuring how to divide any relevant retirement benefits.
Contact Our Orlando Divorce Law Firm Today
As a high net worth individual, you have unique circumstances, and you need an experienced lawyer who understands them. Attorney Beryl Thompson-McClary has been in the business for nearly 30 years and will work diligently to achieve the results you need while keeping your costs in mind. The seasoned legal team at Law Office of Beryl Thompson-McClary, P.A., can start protecting your assets today. Schedule a confidential consultation at no cost to you by calling our Orlando office at (888) 640-2999.
