Florida Equitable Distribution Laws
As stated in the divorce guide, a Florida Family Court Judge will rarely enter a Florida divorce decree unless all issues of marital property distribution, child custody and support are finalized beforehand either through a Property Settlement Agreement or after a hearing and entry of an Order of Court. For this reason, it is important to begin the process for division of the marital assets and debts as soon as possible in a Florida divorce case.
Florida law provides for equitable distribution of the marital estate. This means that all marital property and assets acquired during the marriage as well as all marital debts acquired during the marriage will be divided equitably or in other words, fairly. There are three steps to resolving Florida equitable distribution matters.
The first step for a Florida property distribution lawyer in analyzing a Florida equitable distribution of marital property case is to identify and/or locate the assets and debts of the parties. Identifying and locating each spouse’s assets and debts is generally accomplished through a legal process known as discovery. Discovery is a process whereby an experienced Florida equitable distribution lawyer will submit written questions to the other spouse regarding the marital property and debts and a written response is required. Other times, the Florida equitable distribution attorney may request documents to be produced by the other spouse or may conduct a deposition and require the deposed spouse to answer questions under oath. In some circumstances, the exchange of documents and information is required under Florida law. In other circumstances, the information may never be uncovered unless it is requested and obtained by the spouse’s Florida property distribution lawyers. The discovery process is critically important when it is believed that a spouse may have hidden assets during the marriage in an attempt to prevent the other spouse from obtaining a fair property distribution settlement or order.
The second step for a Florida property distribution lawyer in analyzing an equitable distribution case is to characterize the uncovered assets and debts as marital or non-marital. Assets acquired before the date of marriage, assets acquired through inheritance or gift to one spouse, and assets excluded by way of valid prenuptial agreement are generally characterized as non-marital property. An exception is that the increase in value during the marriage of non-marital assets is generally considered a marital asset. Generally all other assets acquired during the spouses’ marriage are considered marital property and subject to Florida’s equitable distribution process. The same rules hold true regarding the characterization of debts as marital or non-marital. While it sounds easy to characterize the assets and debts as marital or non-marital, this is not always the case especially when non-marital and marital assets are comingled.
The third step in evaluating a Florida property distribution case, is to determine the value of the assets and debts. The balances in banks accounts or the amounts owed on credit cards are readily apparent. However, other assets and debts may require that experts be retained by the Florida divorce attorneys for a fair determination of their value. In divorce cases where real estate valuation issues emerge, our Florida divorce law firm may hire real estate appraisers. In a case where the cash value of a pension plan is involved, our Family law attorneys may hire an actuary to perform a present day cash value determination. In cases where the spouses own a business, business valuation experts and/or forensic accountants may be retained by our Florida divorce lawyers.
The last step for a Florida divorce lawyer in analyzing an equitable distribution case is to consider the factors for division and recommend to their client a proposed distribution. In order to propose a distribution, our Florida divorce attorneys must understand the clients’ goals for the process. Does a mother wish to retain the marital home for the benefit of the minor children? Does a husband wish to be awarded a business that he was primarily responsible for the day-to-day operations? Do spouses who both work wish to keep their retirement accounts in separate names and utilize other assets to make a fair division of property? In today’s economy many equitable distribution cases involve division of large amounts of debt or are debt only cases – what is the best strategies for our clients in those equitable distribution cases?
Florida's equitable distribution statute, Florida Statute 61.075, states that the starting presumption is that each spouse generally receives half of marital assets and liabilities regardless of fault; however, the financial situation of each spouse is taken into account in adjusting the distribution. In other words, equitable distribution does not always mean equal distribution. General allegations are made by the Florida divorce lawyers in the Petition for Dissolution of Marriage or Answer for the Florida court to apply the equitable distribution statute to divide assets and liabilities and any requests for unequal distribution are specifically stated in the pleadings and then substantiated during the discovery process with documentary evidence. It is impossible to predict with one hundred percent certainty what division of assets and debts the Florida Family Court Judges will award to either spouse. However, our Florida family law attorneys can use their years of experience in negotiating and trying equitable distribution cases to give our Florida divorce clients a realistic projection of their likely outcome.
As stated above, the Florida statute provides that distribution of marital assets and liabilities should be presumed equal, unless there is justification for unequal distribution based on other factors which may be relevant. One of those factors is the contributions to the marriage by each spouse. This can include financial contributions, but also includes care and education of the couple’s children and work as a homemaker. The economic circumstances of each party are also considered (a spouse with greater financial need upon the dissolution of the marriage may receive more), as is the duration of the marriage. Whether the educational goals of either spouse have been interrupted and whether one spouse personally contributed to the other spouse’s career or educational goals may affect the property division. Another factor is the relative contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of both the marital assets and the non-marital assets of the parties (this can refer to a number of things; one example would be increasing the value of a shared home by performing renovation work). The Florida family courts also consider the desirability of retaining the marital home as a residence for any minor children of the marriage. If there is an asset such as an interest in a business or corporations, the Florida courts will consider whether one spouse should be awarded the asset intact and free from interference by the other spouse. Finally, Florida's equitable distribution statute has a catch-all provision that allows courts to consider any other factors necessary to do equity and justice between the parties generally without consideration of any adulterous behavior.
The Florida equitable distribution statute warns against the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the Petition for Dissolution or within two years prior to the filing, and a Florida family court would likely account for this type of conduct in making a property award of the dissipated marital funds to the offending spouse and a greater financial award to the aggrieved spouse.
Vari & Associates, LLC
The foregoing guide was published by Attorney Lisa Marie Vari from the Florida family law firm of Vari & Associates, LLC. The guide is intended to provide general information to the reader and not to advise the reader on any particular aspect of the law or how specific facts can alter or vary the general statements made in the guide.
At the firm of Vari & Associates, LLC, we assist our Florida divorce clients in obtaining what they deserve in equitable distribution through thorough preparation, effective negotiation skills and aggressive representation in court if necessary. We understand the factors that the court may look at when determining equitable distribution and we also work with forensic professionals when appropriate to properly value your assets. Our Florida divorce lawyers have extensive experience in these complex marital property division issues, and we will fight to ensure you receive your fair share.