Equitable Distribution in a Florida Divorce

Depending on the size of your marital estate, the equitable distribution of marital assets and liabilities can easily be considered the most important financial aspect of your divorce because it may also set the basis for the court’s final determination of alimony. See section 61.075(9), Florida Statutes.

During the process of dividing the marital estate, issues can arise with the classification of property. Absent a written, enforceable agreement, any assets and liabilities acquired during the marriage will be presumed marital property. On the other hand, assets and liabilities obtained prior to the marriage are generally considered nonmarital or “separate property” unless they fall under certain exceptions that may change the classification of that property. Because parties tend to intermingle nonmarital with marital property during the marriage, issues pertaining to the classification of property do arise during a divorce. After the demarcation of property, the court will first award each party his or her own nonmarital property and then proceed to divide the marital property.

In Florida, courts are required to use the “equitable distribution” method when dividing marital assets and liabilities. The title “equitable distribution” does not necessarily lead to a 50/50 split of property. Although section 61.075(1) of the Florida Statutes establishes that the “court must begin with the premise that the distribution should be equal,” the statute does permit for an “unequal distribution” based on all of the following “relevant” factors as summarized below:

1. Each spouse’s contribution to the marriage (includes the contribution made by a homemaker to the care and education of the children).
2. The financial circumstances of the parties.
3. Duration of the marriage.
4. Interrupting personal careers or educational opportunities of either spouse.
5. A spouse’s contribution to the personal career or education of the other spouse.
6. 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.
7. Each spouse’s contribution to the purchase, improvement or enhancement of assets, and production of income or the incurring of liabilities.
8. The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would 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.
9. A spouse’s intentional squander or destruction of marital assets after the filing for divorce or within 2 years prior to the filing for divorce.
10. Any other factors necessary to do equity and justice between the parties.

There are unique instances in which a Florida court will decide an unequal distribution is justified. For example, one spouse leaves the marriage and lives separately in a different state without either party filing for divorce. The one spouse waits 22 years before filing for a formal dissolution of marriage. During the 22 years of separation, the other spouse, who continues to reside in Florida in the home acquired prior to separation, has been paying 100% of the mortgages and all expenses associated with the Florida residence. Naturally, a Florida court will likely find justification for an unequal distribution in favor of the other spouse who has been solely paying down all the mortgages and expenses associated with the home in Florida.

If the parties are unable to reach a property settlement agreement, then the court will ultimately divide the parties’ marital property in what the court determines to be fair and equitable. Any distribution of marital property made by the court must be supported by the factual findings in its judgment or order. The court’s factual findings can only be based on competent substantial evidence with reference to the relevant factors listed above.

Why retain our office to represent you in your divorce?

Over the years, Mr. Cunha has the privilege of representing clients in divorce cases involving marital estates ranging from modest to substantial (billions) in net worth. As the marital estate substantially increases in size, so does the number of experts Mr. Cunha has to work with on a particular case to determine the value of a spouse’s ownership interests in companies, royalties, artwork, collectables, jewelry, etc.