You are getting divorced. During the course of the marriage, you were in a car accident. During the course of the marriage, you were abused by your spouse. During the course of the marriage, your spouse transferred a sexually transmitted disease to you. During the course of the marriage, you and your spouse bought real estate. During the marriage, your spouse asserted a claim against his or her employer.
Are any of these events relevant in your divorce proceedings? Yes, they absolutely are.
Even in a no-fault divorce State such as Florida, it is important that you discuss with your attorney any other causes of action you think you might have. When a Petition for Divorce (Dissolution of Marriage) is filed, all causes of action that you wish to assert against your spouse need to be set out in separate allegations in the Petition, typically in separately numbered “Counts” that state each cause of action.
For example, you and your spouse own real estate. That real estate (such as the marital home, second homes, timeshares, commercial property, rental property) must be divided between you and your spouse or must be awarded to one, with a commensurate cash allocation to the other. If you only file for divorce, the court either has to leave you and your spouse as co-owners of the property or it must award the property to one spouse or the other. The court cannot order the property to be sold.
Unfortunately, often there are not enough other assets (cash, stock, other properties) to balance out the award of the property to one spouse. The solution is including a Count for Partition of the property. “Partition” becomes an additional Count in the Petition. Partition gives the court jurisdiction to order the property to be sold so that the net proceeds can be divided. If you own real estate in the county where the divorce petition is filed, partition allows the court to establish terms for sale of the property. This can be an essential count if parties are real estate-rich, but cash-poor. It can also be used to order significant collectibles, such as fine art or wine collection or boats and car collections to be sold.
While somewhat rare, there are instances where a party has been subjected to physical abuse or given a sexually transmitted disease. One cannot bring these claims after a divorce case has settled or gone to trial. Such causes of action need to be evaluated before the conclusion of the divorce case to determine whether they should be asserted and what economic value they have. Separate counts for “battery,” “intentional infliction of emotional upset,” and even “fraud” or “misrepresentation” can be brought within the divorce case.
There are other claims that can be asserted within a divorce case, such as fraudulent transfer of assets to third parties or loss of marital assets due to illegal activities that should be explored with your divorce attorney. Also, if you or your spouse has a pending claim for personal injury or other damages arising from events such as automobile accidents or workplace injuries or from other employment-related or business-related claims, it may be necessary to assert your claim to share in any settlement or awards within the divorce case. Some of the money awarded in a personal injury or employment claim may be marital assets, to be shared by both spouses.
An experienced family law attorney can help you determine and establish what claims – beyond the divorce itself – should be made within the divorce case and what additional counts should be made in the Petition for Divorce.