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Property Division and Equitable Distribution FAQ

What is equitable distribution?

Equitable distribution is the term used to describe the process of dividing marital assets and liabilities upon dissolution of marriage.

What assets and debts are marital?

Marital assets and liabilities include the following:

  • Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
  • The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
  • Interspousal gifts during the marriage.
  • All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.

 What assets and debts are non-marital?

Non-marital assets and liabilities include the following:

  • Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
  • Assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
  • All income derived from non-marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
  • Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
  • Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse

 Can my spouse be awarded my non-marital property?

Although your spouse cannot be awarded your non-marital property, your non-marital property can be considered marital property if co-mingling has occurred. Co-mingling occurs when non-marital is property is mixed with marital property to the extent that it loses its characteristic as non-marital property. This usually happens when the original property-owning spouse places non-marital property in a jointly held financial account or in an account or business entity that may be considered marital property. Co-mingling can also occur when the original property-owning spouse allows the other spouse’s name to be put on the account, deed or title to the non-marital property. To avoid co-mingling, do not place your spouse’s name on your non-marital property or place your non-marital property in an account or business entity that may later be considered marital property.

Can we agree on how our assets and debts will be distributed upon dissolution of marriage?

The parties are permitted to come to an agreement deciding how their property is to be distributed upon dissolution of marriage. In many circumstances, an agreement regarding equitable distribution may be preferable because the parties take an active role in deciding how their property will be distributed. Furthermore, coming to an agreement on an equitable distribution scheme is much less costly than fully litigating issues of equitable distribution. However, if both parties are not reasonable in their view of what is equitable, then one party may end up with an inequitable distribution as a result of the agreement. It is important to consider what you would likely be entitled to if you went to court and had the judge decide, and then weigh that against what is being contemplated by a potential agreement. If those two things are vastly different, then an agreement may not be the best resolution for at least one of the parties.

What if we cannot agree on how our assets and debts will be distributed upon dissolution of marriage?

If the parties are unable to resolve issues of equitable distribution through an agreement, then the judge will first classify each item of asset and/or debt in question as either marital or non-marital. Once that is done, the judge will set aside to each spouse his or her non-marital assets and liabilities. Next, the judge will begin the process of equitably distributing the marital property.

How does a family law judge determine what is equitable?

Section 61.075, Florida Statutes addresses the factors a family law judge must take into account when determining a property distribution scheme that is equitable. First, the judge “must begin with the premise that the distribution should be equal unless there is justification for an unequal distribution based on all relevant factors.” The relevant factors to be considered are:

  • The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
  • The economic circumstances of the parties.
  • The duration of the marriage.
  • Any interruption of personal careers or educational opportunities of either party.
  • The contribution of one spouse to the personal career or educational 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 non-marital 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 residence 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.

 Can a Final Judgment addressing equitable distribution of property be changed or modified?

Unlike other parts of a Final Judgment of Dissolution of Marriage, such as alimony and provisions related to children, the portion of a Final Judgment addressing how the parties’ property will be equitably distributed is final and cannot be modified through a later action. However, if the judge made an error in deciding the equitable distribution scheme, then his judgment may be appealed if the proper notice is filed within thirty (30) days after the Final Judgment is issued.

Do I need to hire a lawyer?

Many factors come into play when the judge determines how to equitably distribute marital property. The process can be complicated, especially if the parties have acquired a large amount of assets or a large amount of debt. Even if there is not much debt or many assets, there are various legal and factual considerations that must be evaluated when coming to a determination of how a couple’s property will be forever distributed to them, and it is a lawyer’s job to point out and argue those considerations to the judge. Once the decision has been made and the judgment is final, issues of equitable distribution stand and cannot be modified. In order to protect your valuable property rights that you have worked your entire life to acquire, it is important to speak with a family law attorney if you are contemplating divorce or if you have been served with a Petition for Dissolution of Marriage.

 

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