Equitable distribution is the process in which the Court divides marital assets and liabilities during divorce proceedings. Florida Statute §61.075 defines this process and includes factors that the Court considers when determining whether property acquired during the marriage is martial or nonmarital.
Property considered as marital property will be equitably divided between the parties.
The equitable distribution statute defines the term “marital assets and liabilities” to include the following:
(1) Assets acquired and liabilities incurred during the marriage by one spouse individually or by both jointly.
(2) The enhancement in value and the appreciation of nonmarital assets that results from either the efforts of either party during marriage or the expenditure of marital funds or other marital assets.
(3) Gifts given by one spouse to the other during the marriage.
(4) All vested and nonvested benefits, rights, and funds that accrued during marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs. See Florida Statute §61.075(6)(a)1.
Real or personal property held by spouses as tenants by the entireties is presumed to be a marital asset, regardless of whether the property was acquired before or during the marriage. A spouse who claims to the
contrary has the burden of proving that all or a portion of the property is nonmarital.
Is the division of assets always equal?
In short, no. Courts are required to start equally; however, Courts are given the discretion to award 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. 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 made by one spouse during marriage to the other spouse is a marital asset, and therefore subject to equitable distribution. See Florida Statute § 61.075(6)(a)1.d. An interspousal gift is established by showing (1) donative intent, (2) delivery or possession of the gift, and (3) surrender of dominion and control of the gift. The burden is on the spouse seeking to prove an interest in the property to show it was an interspousal gift. See Hooker v. Hooker, 220 So. 3d 397, 403 (Fla. 2017).
In fact, a deed of gift of tangible personal property from one spouse to the other during marriage does not establish the property as the nonmarital property of the recipient-spouse. To establish that property gifted from one spouse to another during marriage is a nonmarital asset, the recipient-spouse claiming it must prove an intent to remove 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 are intending on filing for divorce or feel that your spouse is ready to file, you should contact an attorney to explain the process to you and review your rights.
I created this blog post to give readers information as to what equitable distribution means; however, this information does not replace the benefit of being represented by an attorney.
If you have questions about equitable distribution, it’s best to ask a qualified family law attorney. Schedule a consultation with one of our attorneys today to review the issues of your position the legal options you may have, and certain rights that pertain to your unique situation.
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