How Property is Allocated Upon Divorce Under Florida Law

October 09, 2010 (Press-News.org) In Florida, the property and debt distribution issues raised during a divorce are often settled between the parties in a marital settlement agreement. When parties are unable to reach an agreement, however, a Florida court must step in to divide a couple's assets and liabilities. Even though many property settlements are hammered out outside the courtroom, the factors judges use in dividing property affect the relative strength of each side's bargaining position. Accordingly, understanding how a court allocates property upon the dissolution of a marriage is essential for any party to a divorce.

Equitable Distribution and Relevant Factors

Like most states, Florida employs "equitable distribution" in dividing marital property upon divorce. Pursuant to Florida's equitable distribution statute, Florida Statute 61.075, the starting presumption is that each party generally receives half of marital assets and liabilities regardless of fault; however, the financial situation of each spouse is taken into account in adjusting the distribution, as are certain other specific exceptions to the definition of what is marital and what is non-marital in nature. "Equitable" does not always necessarily mean "equal". Very general allegations are made in the initial divorce pleadings for the court to apply the equitable distribution statute to divide assets and liabilities, and any requests for unequal distribution should be plead for specifically and then substantiated during the discovery process with documentary evidence.

While flexibility is a keystone of equitable distribution, it is difficult to predict actual outcomes, as the various factors a court will consider are subjectively weighed. Under the alternative used in some states, the community property system, property acquired during the marriage is deemed to be owned equally by the husband and the wife and is divided accordingly, making results generally easier to predict--but complications can, and often do, arise.

Factors Considered by the Court in Equitable Distribution

One of the first things a Florida divorce court will do is to classify which property and debt is to be considered marital. Generally, all property acquired by either spouse before the marriage is considered non-marital property, and all property acquired after the marriage is marital property. There are also several exceptions: for example, property acquired by gift or inheritance is generally not considered marital property. When marital and non-marital property have been pooled or commingled, a court may be able to be untangle the assets, but sometimes combined property can become marital property. The statute provides that non-marital property that has been titled in joint names becomes marital in nature.

The statute provides that distribution of marital assets and liabilities should be presumed equal, unless there is justification for unequal distribution based on other factors which may be relevant. One of those factors is the contributions to the marriage by each spouse. This can include financial contributions, but also includes care and education of the couple's children and work as a homemaker.

The economic circumstances of each party are also considered (a spouse with greater financial need upon the dissolution of the marriage may receive more), as is the duration of the marriage. Whether the educational goals of either spouse have been interrupted and whether one spouse personally contributed to the other spouse's career or educational goals may affect the property division.

Future plans for property can be important too: whether one spouse wants to keep certain assets in their same form without any interference (for example, a desire to keep an interest in a business free from interference by the other party) and the desire to retain the marital home as a residence for any dependent children can both be taken into account.

Another factor is the relative contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of both the marital assets and the non-marital assets of the parties (this can refer to a number of things; one example would be increasing the value of a shared home by performing renovation work). The Florida statute warns against the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the divorce petition or within two years prior to the filing, and a court would likely account for this type of conduct in making a property award of one-half the dissipated marital funds to the aggrieved spouse.

Finally, Florida's equitable distribution statute has a catch-all provision that allows courts to consider any other factors necessary to do equity and justice between the parties (however, this usually does not include considering adultery or other issues of fault; according to the Florida Supreme Court, the purpose of equitable distribution is not to punish adulterous behavior, and the only way infidelity is generally relevant to the financial picture is when it can be demonstrated that adulterous behavior has depleted marital resources).

There are a couple more things to keep in mind when looking at property distribution factors. For one thing, any marital debt must also be divided between the parties, and a court will look to the same facts in deciding which spouse will be responsible for any liability. In addition, it is important to note that property distribution imposed by a court only applies to marital property.

What You Should Do

There is no doubt dividing property upon the dissolution of a marriage can be difficult and the factors courts consider can be confusing. The entire process may be a bit overwhelming. Courts do have wide discretion in property distribution, however, and you must stand up for what is rightly yours in order to get a fair outcome. The assistance of an experienced divorce attorney, particularly one who is a specialist in marital and family law, is the best way to navigate the complex process of marital property distribution and to get the results you deserve.

Article provided by Lewert Law Offices, P.A.
Visit us at www.lewertlaw.com