Kenneth Foote

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Kenneth Foote

  

Equitable Distribution of Property in Florida

What is Equitable Distribution in Florida?

“Equitable distribution” refers to the way that spouses in Florida divide their property and debts in a divorce. While some states have community property rules requiring an exactly equal division of marital property and debts, most states require only an “equitable” or fair division. Florida law requires an equitable division but also states that in most cases equitable means equal.

What is Separate Property in Florida?

Before dividing property, a couple must determine whether either spouse owns any of the property separately. Separate, or “non-marital,” property is not subject to division in divorce. Property is separate if one spouse owned it before marriage or acquired it during marriage as a gift (not including gifts from the other spouse) or by inheritance. Separate property also includes:

  • assets and debts a couple defines as separate property in a valid written agreement (a premarital agreement, for example) income from separate property, unless the spouses have treated the income as marital property, by “commingling” it, for example (see below), and items exchanged for or purchased with separate property.

What is Marital Property in Florida?

Unless a couple has a valid written agreement stating otherwise, marital property in Florida includes all assets and debts either spouse acquires during the marriage. It doesn’t matter if the property or debt is titled jointly or is only in one spouse’s name. For example, if your spouse opens a credit card account and your name is not on it, you are still jointly responsible for the charges on the card, even if your spouse did all the spending (unless a court finds that your spouse wasted assets, for example, if the spending was reckless - see discussion below).

Assets include money, property, and benefits such as retirement accounts, deferred compensation, or profit-sharing. Benefits are marital property whether they are “vested” or not (meaning whether the right to receive the benefits is absolute or depends on some future condition, such as continuing to work for a certain number of additional years). If you or your spouse accrued benefits both before and during marriage, you may need to consult an attorney to find out what portion is marital property. You may also need an opinion about the value of the benefits from a financial advisor.

A spouse can change separate property into marital property (essentially making a gift of separate property to the other spouse) by changing the title into a form of joint ownership. A Florida court will presume that any property a couple owns as “tenants by the entireties” is marital property, even if one spouse acquired the property separately before marriage. Convincing a court to treat such property as separate will be difficult, if not impossible.

The increase in value of separate property during the marriage is also marital property if it resulted from the contribution of marital funds or the active efforts of either spouse. This includes efforts such as maintaining a home, or working in a business.

A spouse can also make a gift of separate property to the marriage by mixing it with marital property—sometimes called “commingling.” There are many ways this can happen—depositing marital funds into a premarital bank account, for example, or paying the mortgage on a separate property with marital earnings. In this kind of situation, a court might treat all of the property as marital. The spouse claiming that part of the property is separate would have to trace the separate source of the funds using detailed financial records. These situations can be very complicated and usually require the assistance of an attorney.

How is Property Divided?

Couples can make their own agreements about dividing property either on their own or with the help of a mediator. Courts generally uphold such agreements as long as they are in writing and each spouse has had an opportunity to consult with an independent attorney. If a couple can’t reach an agreement, an arbitrator or judge will decide. As stated above, assets are usually divided equally; however, the arbitrator or judge can make an unequal division after considering all of the relevant circumstances, including the following:

  • the length of the marriage
  • each spouse’s overall economic circumstances
  • the desirability of allowing the couple's minor children, or either spouse, to continue living in the marital home
  • each spouse’s contributions, including improvement of marital or non-marital assets, and contributions to the marriage either as an income-earner or as a parent or homemaker
  • whether either spouse interrupted a career or education during the marriage or contributed to the other spouse’s career or education each spouse’s debts and liabilities, and 
  • whether either spouse intentionally wasted or destroyed marital assets either after the divorce petition or within the two years preceding it.

Another factor court's consider is the difficulty of dividing certain assets. For example, in most cases a judge would try to award a business started by one spouse during the marriage entirely to that spouse and award other property or money to the other spouse to make up for the marital interest in the business. A court won’t divide up a home and award each spouse part of it, but might order the couple to sell it and divide the proceeds. If a marital home is the couple’s only major asset, a judge might also order the couple to wait until some future date to sell the home and divide the proceeds, and award one spouse a temporary right to live in the home. This is a particularly common result when the couple has minor children still living in the home.

How are Debts Divided?

Courts also generally divide the value of all marital debt equally, while assigning responsibility for actual payment to one spouse or the other. As with assets, the court has the option of dividing debt unequally if this seems fair under all of the circumstances. If one spouse spent money recklessly and ran up a large amount of debt single-handedly, for example, the court might assign the total amount of that debt to the reckless spouse.

If the court assigns responsibility for payment of a debt to your spouse, remove your name from the account, if possible. Otherwise the creditor might continue to come after you for payment. Contact an attorney if you need assistance.

Grounds for Divorce

In Florida, either spouse may file for divorce if the marriage is irretrievably broken, meaning there is no chance for reconciliation, or if one of the spouses has been mentally incapacitated for at least three years.  You do not have to prove that the other person was at fault in order to get a divorce.

Residency Requirement and Waiting Period

At least one spouse must reside in Florida for six months prior to filing a petition for divorce. You must file the petition in the circuit court where you or your spouse live. The court may enter a final judgment for divorce as soon as 20 days after you file the petition if all of the required paperwork is complete. However, if you can show that it would be unjust to wait 20 days, the court may enter judgment at an earlier date.

Alimony

Florida courts may grant temporary or permanent alimony to a spouse who has an actual need for alimony, as long as the other spouse has the ability to pay. The court will consider all relevant economic factors to determine the amount of alimony, including the standard of living established during the marriage, the financial resources and earning capacity of both spouses, and the duration of the marriage. If one spouse committed adultery during the marriage, the court may consider that fact as well. You may request a modification of the alimony amount if your or your spouse's financial situation changes significantly.  

Factors to determine the amount of alimony

Equitable distribution of marital assets and liabilities.—

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) 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.

(g) 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 nonmarital assets of the parties.

(h) 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.

(i) 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.

(j) Any other factors necessary to do equity and justice between the parties.

(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor’s estate to the obligee or the obligee’s estate, unless otherwise agreed to by the parties.

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;

(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.

(5) If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order may be entered at any time after the date the dissolution of marriage is filed and served and before the final distribution of marital and nonmarital assets and marital and nonmarital liabilities.

(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.

(b) The court shall specifically take into account and give appropriate credit for any partial distribution of marital assets or liabilities in its final allocation of marital assets or liabilities. Further, the court shall make specific findings in any interim order under this section that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.

(c) Any interim order partially distributing marital assets or liabilities as provided in this subsection shall be pursuant to and comport with the factors in subsections (1) and (3) as such factors pertain to the assets or liabilities made the subject of the sworn motion.

(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution.

(6) As used in this section:

(a)1. “Marital assets and liabilities” include:

a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

b. The enhancement in value and appreciation of nonmarital 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.

c. Interspousal gifts during the marriage.

d. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.

2. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.

(b) “Nonmarital assets and liabilities” include:

1. 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;

2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;

3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;

4. 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

5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.

(7) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.

(8) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual property; affect the laws of descent and distribution; or establish community property in this state.

(9) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.

(10) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.

(11) Special equity is abolished. All claims formerly identified as special equity, and all special equity calculations, are abolished and shall be asserted either as a claim for unequal distribution of marital property and resolved by the factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property.

Child Support

Florida courts use the official state guidelines to determine what amount child support is appropriate. Child support payments continue until the child is 18 unless the court orders otherwise. The court will also make an order regarding health insurance coverage for the child and may order parents to share the cost of medical expenses not covered by insurance. Support payments can be paid directly to the recipient parent or withheld from the paying parent's paycheck. To modify a child support order, a parent must show a substantial change in circumstances such as a significant change in income, or must prove that the modification is in the best interest of the child. Child support orders in Florida are enforced by the Child Support Enforcement Bureau.

Child Custody

Florida courts determine child custody based on the best interest of the child without regard to the sex of the parent or the child. The court will order the parents to share parenting responsibilities unless shared responsibility would be detrimental to the child. In making its determination, the court will evaluate several factors, including which parent is more likely to allow the child frequent contact with the other parent, the emotional ties between each parent and the child, the parents' ability to provide the child with material needs, and the child's adjustment to home, school, and community. The judge will then make orders regarding the child's primary residence and visitation schedule with the other parent. Alternatively, parents may meet with a court appointed psychologist to develop a recommended parenting plan. To modify a custody order, parents must show that there has been a substantial change in circumstances and that it would be in the child's best interest to change the custody plan.

PROPERTY DIVISION

One of the most difficult and complex areas of divorce is the division of marital assets and debts. Marital property may include cars, houses, retirement benefits (pensions and 401k plans), business interests, cash, stocks, bonds, bank accounts, personal property, and other things of value. Debts, also called liabilities, include mortgages, car loans, credit card accounts, and other amounts of money you and your spouse owe to third parties. Generally, any asset or liability acquired during the marriage is considered marital and subject to distribution. The parties may also have assets or liabilities that are considered non-marital and should be awarded to only one party.

Florida statutes and case law provide for an “equitable distribution” of marital assets and liabilities. Marital property should be divided fairly or equitably (not necessarily equally) between the parties, regardless of how title is held. A court decides equitable distribution before considering alimony. Equitable distribution is based on a long list of factors the court is required to consider.

Factors to be considered by the court include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse. The court should approve your agreement if the court finds it to be reasonable. If you and your spouse cannot agree, the court will divide the assets and liabilities during trial.

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