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EQUITABLE DISTRIBUTION

Equitable distribution refers to the division of the marital assets and debts between the parties. 

Generally, marital assets are those assets acquired during the marriage, enhancements in value to non-marital property, and the paydown of a mortgage (utilizing a formula to determine the marital portion). Marital liabilities are liabilities that were incurred during the marriage. 

 

Many people mistakenly believe that if they keep their finances separate during the marriage that that automatically prevents their spouse from being entitled to a share of those assets. For example, let’s say the wife is employed and deposits her paychecks into an account solely in her name during the marriage. The husband does the same with an account in his individual name. However, for purposes of equitable distribution, the combined total of the accounts is split equally between the parties, despite each party’s intent to keep their finances separately during the marriage, unless the parties have agreed in writing otherwise.

 

Another misconception is that one spouse is not responsible for the credit card debt that the other spouse has incurred during the marriage when the parties have maintained their separate credit cards. As a part of the divorce, all credit card debt will be added together and divided equally, unless the parties agree in writing otherwise, unless a successful argument can be made for an unequal distribution. People are particularly surprised that student loan debt is deemed marital. As such, one party may enjoy the benefit of receiving an expensive education during the marriage that results in a degree that will be very valuable to that person in the future by creating an enhanced income stream. Nonetheless, the debt is divided equally. This seems to be an unfair result. In some states, to mitigate this unfairness, there is a monetary value attributed to the degree so as to allow for an offset between the value of the degree and the student loan liability. That is not the case in Florida. 

 

There are many assets that people fail to consider in a divorce, such as frequent flier miles, accrued sick leave and holiday time, credit card points, etc. There are also tax implications with regard to equitable distribution. There is much to consider in dividing marital assets and liabilities, and there is plenty of room for legal arguments with regard to what is and is not a marital asset and liability, whether co-mingling has occurred, and if so, the result of such co-mingling, etc. 

 

Although the parties can agree to divide their estate as they wish, if they are unable to do so, then the court must start with the premise that the marital estate should be divided equally unless there is justification for an unequal distribution including all relevant factors listed in Florida Statute 61.075:

  1. The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker. 

  2. The economic circumstances of the parties. 

  3. The duration of the marriage. 

  4. Any interruption of personal careers or educational opportunities of either party. 

  5. The contribution of one’s spouse to the personal career or educational opportunity of the other spouse. 

  6. 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. 

  7. 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 non-marital assets of the parties. 

  8. 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 to 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 home. 

  9. 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. 

  10. Any other factors necessary to do equity and justice between the parties. 

 

Despite what appears to be an extensive list, with several considerations suggesting that an unequal distribution is often granted, the reverse is actually true in my experience.  Many things that people think will justify an unequal distribution in their favor actually do not. I have seen more success in arguments related to what is and is not classified as marital, as opposed to arguments directed at an unequal distribution.  Courts are inclined to stick with the presumption of an equal division of the marital estate. That does not mean that you do not have a valid reason or argument to request something other than an equal distribution. It is certainly a consideration and discussion to have as a part of your case. 

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