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What Does “Equitable Distribution of Marital Property” Mean?

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Couples getting divorced in Florida are allowed to decide how to divide their assets and debts, if they can agree how to do so. If a couple can’t agree, then a family law judge will make the determination for them in accordance with the theory of equitable distribution. This article provides a brief overview of how judges in Florida go about attempting to fairly and equitably distribute marital property and debts during a divorce; however, each divorce is unique and for case specific information you should consult with a local family law attorney.

How do Courts Determine an Equitable Distribution of Assets and Debts?

Under the theory of equitable distribution of marital property (codified in section 61.075 of the Florida Statutes), family law courts in Florida attempt to divide a couple’s marital property and debts in a way that would be “equitable” to both parties. In order to do this the judge considers several factors including:

  • What each spouse contributed to the marriage;
  • The economic circumstances of each spouse;
  • How long the couple was married;
  • Whether one spouse interrupted his or her career or education in order to raise the couple’s children;
  • The desirability of retaining a specific asset free from claims by the other spouse;
  • Whether one spouse aided the career advancement or education of the other spouse;
  • The desirability of retaining the family home as a residence for the couple’s dependent children;
  • Whether one spouse attempted to hide or spend marital assets in anticipation of divorce (within the two years preceding the divorce or after the divorce was filed); and
  • Any other factors necessary to do equity and justice between the parties.

Marital Assets and Debts vs. Nonmarital Assets and Debts

It is important to note that divorce courts in Florida only use the equitable distribution of property theory outlined above to distribute marital assets and debts. This is because after a divorce in Florida nonmarital assets and debts remain with the spouse that they belonged to during the marriage. There are many complicated rules that help courts determine whether an asset (or a debt) is a marital or nonmarital asset, but some examples are listed below so you can get a feel for the difference.

Examples of Marital Assets and Liabilities:

  • Assets/liabilities incurred during the marriage by either spouse individually or by the spouses jointly;
  • Gifts given from one spouse to the other during the marriage;
  • Property (both real and personal) held by the spouses as tenants by the entireties (whether acquired prior to the marriage or during the marriage);
  • Enhancement in value of nonmarital assets resulting from the efforts of either spouse during the marriage; and
  • All benefits, rights, and funds accrued during the marriage in retirement, pension, or insurance plans.

Examples of Nonmarital Assets and Liabilities:

  • Assets/liabilities incurred by either spouse before the marriage;
  • Assets a spouse acquired by non-interspousal gift, bequest, or devise;
  • All income derived from nonmarital assets during the marriage that was not treated or relied upon by the spouses as a marital asset;
  • Assets/liabilities that are excluded from being considered marital assets/liabilities by a valid written agreement executed between the spouses; and
  • Any liability incurred by one spouse by forging the signature of the other spouse.

Need Legal Advice?

Identifying and valuing marital property can be extremely complicated.  Therefore, in order to ensure that your financial interests are protected, it is very important that you have an experienced property division attorney by your side. David L. Hirschberg is a Florida Bar Board Certified marital and family law attorney with extensive experience handling divorces in Florida, and would be happy to advocate for your financial rights during your divorce. To schedule a confidential consultation contact our Boca Raton office today at (561) 288-8620.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html

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