Orlando Property Division Lawyer

Equitable Distribution

Florida, along with a number of other states, is an “equitable distribution” state. This means that the court will determine the value of all of the marital assets and distribute them to the parties on an equitable basis. While equitable does not always mean equal, it has been said that equal is always equitable and a 50/50 split is the place that the court is likely to start in most marriages.

The Florida legislature has recently enacted an equitable distribution statute defining marital assets, non-marital assets and setting forth various factors to be considered in making the distribution.

Marital assets and liabilities are generally defined as all of those assets acquired and liabilities incurred during the marriage regardless of which spouse acquired them or incurred them or in whose name they are held. Also included is the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage or from the contributions to or expenditures thereon of marital funds or other forms of marital assets, or both. Specifically included is all real property held by the parties as joint tenants by the entireties whether acquired prior to or during the marriage, all gifts given by one spouse to another during the marriage and all vested and non-vested pension or retirement benefits.

Non-marital assets and liabilities would generally be those acquired or incurred by parties prior to their marriage or those received separately by gift or inheritance.  The law recently changed (July 1, 2008) regarding the distribution of assets and liabilities.  Now a court can make a partial distribution during the proceedings.  Before July 1, 2008, this was not possible without the agreement of both parties.  This could allow a court to order the sale of real property before a Final Judgment is entered.  In addition, the term “special equity” is no longer used, but the concept of an unequal distribution of the assets remains.  The presumption is in favor of an equal distribution.  In order to receive an unequal distribution of the assets, a party must demonstrate to the court that he or she made a contribution to a marital asset from a non-marital source that was not intended as a gift.

Some factors to be considered by the court in making the distribution are the contributions of the parties to the marriage, including homemaker services, contributions to the care and education of the children, the economic circumstances of the parties, the duration of the marriage, the interruption of personal careers or educational opportunities of either party, contribution of one spouse to the personal career or educational opportunity of the other spouse, desirability of retaining any asset intact and free from any claim by the other party, and the improvement of non-marital assets, the desirability of retaining the marital home as a residence for any dependent child of the marriage when it is financially feasible to do so, any intentional dissipation of marital assets after the filing of the Petition or within two (2) years of filing the Petition and any other factors necessary to do equity and justice between the parties.

As you can see from these factors, the court has very broad discretion in this matter and each case must be considered on an individual basis.