Equitable Distribution of Property In Divorce

January 19, 2015

One of the most common and most important problems in a divorce is how to divide the divorcing couple’s property. “Equitable distribution” is a term that describes the way in which Florida courts divide spouses’ marital property in the event of divorce. “Equitable” does not mean “equal,” but rather means that if a divorcing couple is not able to agree on how to divide their property and debts, a judge will step in and decide how to fairly divide the marital property. In this situation, the services of an experienced family law attorney can be invaluable, as the attorney can present the best legal arguments to the judge so that the property is divided justly.

How Is the Property Divided?

Judges divide marital property based on a number of factors set forth in Florida’s equitable distribution statute. These factors are:

• The contributions that each spouse has made to the marriage, financial and otherwise,
• The spouse’s economic positions,
• The length of the marriage,
• Whether either spouse has sacrificed educational or career opportunities for the marriage,
• Whether either spouse has contributed to the education or career of the other spouse,
• Whether it is preferable to keep any asset whole and free from interference from the other spouse. An example of this could be a share of a small business which, if divided between divorcing spouses, would damage the value of the share. In this event, the other spouse would be compensated with other assets.
• Each spouse’s contribution to the couple’s income and to the couple’s debt,
• Whether it is in the children’s best interest and whether it is feasible for any children to remain in the marital home,
• Any intentional waste of the couple’s assets by either spouse during the past two years, and
• Any other factors needed “to do equity and justice between the parties.”

What Is Marital Property?

In Florida, there are two types of property in a marriage: nonmarital property and marital property. Only marital property will be divided upon divorce. Nonmarital assets and liabilities are any property or debts belonging solely to one spouse. This includes:

• Property owned by one spouse prior to the marriage,
• Gifts or bequests given to one spouse only,
• Income earned from nonmarital assets, unless it was relied upon and treated as marital property,
• Any property or debts that the spouses have agreed, in writing, is nonmarital, and
• Any debts incurred as a result of one spouse forging the other’s signature.

Marital assets and liabilities belong to both spouses equally. These include:

• Property and debts acquired during the marriage, whether by one spouse alone or by both,
• Any increases in value of nonmarital assets that are caused by the efforts of either spouse during the marriage, or by the contribution of marital funds,
• Gifts given by one spouse to the other during the marriage,
• Retirement, pension, or insurance benefits earned during the marriage, and
• Any property, including real estate and personal property such as cars, that the spouses own together.

If you are going through a divorce, it is very important to take advantages of the services of an attorney. An experienced attorney will act as your advocate and make sure that the judge understands your full situation, so that he or she can make the most fair determination as to the distribution of property. If you are going through a divorce, please contact West Palm Beach family law attorney William Wallshein to make sure your best interests are represented.