Florida divorce: The burden of proof for establishing non-marital debt

Posted by Nydia Streets of Streets Law in Florida Divorce

What is considered a marital debt? According to the Florida Statutes, “All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities.” Fla. Sta. 61.075(8). “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.” Fla. Stat. 61.075(7). This was an issue in the case Reese v. Reese, 6D23-201 (Fla. 6th DCA May 12, 2023).

The former wife in this case had three lawyers withdraw from representing her prior to her trial date. At a pre-trial conference held approximately 60 days prior to trial, the former wife asked for a continuance of trial which was denied. On the trial date, the former wife again moved for continuance of trial which was denied on the basis that the former wife had ample time to retain counsel and that the proceedings had been delayed because of her non-cooperation. Trial proceeded, and the court made decisions regarding alimony, attorney’s fees and equitable distribution which were appealed by former wife. The former wife also appealed the denial of her request for continuance.

Starting with the continuance issue, the appellate court held “As to Former Wife’s oral motion for continuance made at the pre-trial conference, this motion was made prior to the trial but was not made in writing. Florida Rule of General Practice and Judicial Administration 2.545(e) states that ‘[a]ll motions for continuance shall be in writing unless made at a trial.’ Therefore, this motion was properly denied because it was not made in writing. As to Former Wife’s motion for continuance made at the trial, we review the trial court’s denial of this motion for an abuse of discretion. In conducting that review, we consider the totality of the circumstances that were before the trial court.

In this case, Former Wife specifically agreed to the trial date. She then made an oral motion to continue the trial sixty days before trial at the pre-trial conference. The trial court properly denied that motion when it was made and informed Former Wife that the trial would proceed as scheduled. Former Wife then had sixty days to prepare for trial. The fact that she did not have an attorney was not unforeseen to her at that time, as her attorney had withdrawn three days prior to the pre-trial conference. At no time prior to the day of the trial did Former Wife file a written motion for continuance seeking additional time to hire an attorney. Knowing for sixty days that the trial was approaching, Former Wife waited until the day of the trial to seek a continuance. When she made her oral motion for continuance at the trial, she provided no specific details of the dates she attempted to hire lawyers or any explanation sufficient to justify her waiting until the day of the trial to seek a continuance. The trial court also found that Former Wife had a history of delaying the proceedings. Under these circumstances, the trial court was within its discretion to deny the motion for continuance.”

As to equitable distribution, the former wife argued it was error for the court to fail to consider tax consequences in dividing assets. However, since no evidence was presented to the trial court of any such consequences, the appellate court rejected this claim. The former wife also argued it was error to use the e filing date value of the marital home. She pointed out that the former husband testified at trial that the home had risen in value by the time of trial, but did not specify an amount. This argument was also rejected, with the court holding “We review a trial court’s determination of the valuation date of an asset for abuse of discretion. Roth v. Roth, 312 So. 3d 1021, 1027-28 (Fla. 2d DCA 2021). Normally, ‘[w]hen marital assets have appreciated passively since the filing date, the date of the final hearing generally should be used. When marital assets have appreciated due to the work efforts of either party since the filing date, the filing date should be used.’ Erdman v. Erdman, 301 So. 3d 316, 319 (Fla. 5th DCA 2019) (quoting Parry v. Parry, 933 So. 2d 9, 14 (Fla. 2d DCA 2006)). However, the valuation of an asset must be based on competent, substantial evidence. § 61.075(3), Fla. Stat. (2018); Blossman v. Blossman, 92 So. 3d 878, 879 (Fla. 1st DCA 2012); Gudur v. Gudur, 277 So. 3d 687, 690 (Fla. 2d DCA 2019). Therefore, when the only competent, substantial evidence presented to the trial court regarding the value of a marital asset is the value as of the date of filing of the petition for dissolution, the trial court does not err by accepting that value even if there is evidence that the value of the asset may have increased between the date of filing of the petition and the date of the trial. The trial court is not permitted to simply guess at what the value of an asset may be as of the date of trial.”

The former wife next argued that it was error for the trial court to determine a hospital bill incurred by her in the month the petition for divorce was filed was non-marital. The petition was filed on February 10. The former wife testified the bill was incurred in that February but did not specify a specific date. No evidence was presented as to the specific date. The appellate court held “Thus, the undisputed evidence at trial established that the hospital bill was a liability incurred by Former Wife subsequent to the date of the parties’ marriage. No evidence established whether Former Wife incurred the hospital bill before or after the date that Former Husband filed his petition for dissolution of marriage. The trial court found that the bill was incurred after Former Husband filed his petition for dissolution. For that reason, the trial court classified the bill as a nonmarital liability of Former Wife. We agree with Former Wife that the trial court erred in classifying the hospital bill as nonmarital.”

Citing Fla. Sta. Chp. 61.075, the appellate court held “In this case, Former Wife presented evidence that the hospital bill was incurred subsequent to the date of the marriage when she testified that the bill was incurred in February 2020. While Former Wife established that the liability was incurred subsequent to the date of the marriage, she did so without specifically establishing that the liability was nonmarital, as she did not testify to whether the liability was incurred before or after the applicable cut-off date, which in this case was the date of the filing of the petition for dissolution of marriage. Under subsection (8), once Former Wife established the existence of a liability that was incurred subsequent to the date of the parties’ marriage without specifically establishing that the liability was nonmarital, the liability was presumed to be a marital liability. Former Husband then bore the burden of proof to show that the liability was nonmarital by establishing that the liability was incurred after the date of the filing of the petition for dissolution. Former Husband presented no evidence that the hospital bill was incurred after February 10, 2020. For this reason, the trial court erred by classifying the hospital bill as nonmarital.”

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