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:
What assets and debts are non-marital?
Non-marital assets and liabilities include the following:
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:
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.