Equitable Distribution is the process by which the judge will allocate and divide the marital assets and liabilities between you and your spouse. In Florida, this process is governed by Florida Statute § 61.075. When the judge distributes the marital assets and liabilities between you and your spouse, the court must begin with the premise that the distribution should be equal. However, there are cases where the judge may decide that an unequal distribution of assets is necessary, based on certain relevant factors. Presenting evidence of these factors can have a marked influence on how assets are divided.
Marital Assets and Liabilities in a Divorce
The biggest fight in this particular area of a divorce is usually whether or not a particular asset or liability qualifies as marital and therefore is subject to the court's equitable distribution.
"Marital Assets and Liabilities" as defined by §61.075 are:
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.
Conversely, "Non-marital Assets and Liabilities" include:
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.
Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse.
As we mentioned above, the Court will usually divide your assets and liabilities as equally as possible. However, the Court may find that the circumstances of the case warrant an unequal distribution, where one party will be awarded more of an asset or liability than the other. To make such a determination, your judge will look at the following relevant factors:
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.