Equitable distribution is the process in which the Court divides marital assets and liabilities during divorce proceedings. Florida Statute §61.075 Florida defines equitable distribution, including factors for classifying property as marital or nonmarital.
Courts will equitably divide property considered as marital between the parties. The equitable distribution statute defines the term “marital assets and liabilities” to include the following:
- Assets acquired and liabilities incurred during the marriage by one spouse individually or by both jointly.
- The enhancement in value and the appreciation of nonmarital assets that results from either the efforts of either party during the marriage or the expenditure of marital funds or other marital assets.
- Gifts given by one spouse to the other during the marriage.
- All vested and nonvested benefits, rights, and funds that accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs. See Florida Statute §61.075(6)(a)1.
Spouses holding property as tenants by the entireties usually see it as a marital asset, acquired anytime. A spouse must prove that certain property is nonmarital if they claim otherwise.
Is the division of assets always equal?
In short, no. Courts must start with equal division but can award unequally based on factors like:
- (a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemakers.
- (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 before the filing of the petition. For example, if one spouse has an affair and uses marital assets to fund said affair, then the other spouse may argue for an unequal equitable distribution, due dissipation of assets by the cheating spouse.
- (j) Any other factors necessary to do equity and justice between the parties.
What about gifts?
An interspousal gift during marriage is a marital asset and subject to equitable distribution. See Florida Statute § 61.075(6)(a)1.d. To establish an interspousal gift, one must show donative intent, gift delivery, and surrender of control. The spouse must prove an interest in the property to classify it as an interspousal gift. See Hooker v. Hooker, 220 So. 3d 397, 403 (Fla. 2017).
A deed of gift from one spouse to another during marriage doesn’t make the property nonmarital. The recipient must prove an intent to exclude the property from the marital estate. See Marshall-Beasley v. Beasley, 77 So. 3d 751 (Fla. 4th DCA 2011) (finding that the wife could not use a written deed of gift to establish that jewelry given to her by the husband during marriage using marital funds was her nonmarital property).
When to seek help:
Going through a divorce takes a toll on a person. At times, it may be emotionally difficult and overwhelming. If you’re considering divorce or expect one, consult an attorney to understand the process and your rights.
This blog post aims to explain equitable distribution, but it cannot replace an attorney’s representation.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with our team today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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