Dividing properties after a marriage ends can be a daunting task, particularly where substantial assets are involved. The legal process of settling property issues is referred to as Equitable Distribution, which Florida statute generally divides equally between the parties, based on the theory of equal partnership in a marriage.
In any case for equitable distribution, the process involves:
- Identification of assets belonging to the spouses jointly and individually
- Classification as marital or non-marital, and
- Valuation of assets and liabilities.
- Non-marital assets and liabilities
Only marital assets may be divided between the parties in an equitable distribution. The law, however, presumes that all assets after the date of marriage to be marital properties. A party may overcome this presumption by showing proof that a specific property is non-marital.
As parties may have acquired assets before the marriage, it’s important to identify which assets and liabilities are non-marital and to separate these from the pool of marital assets.
Florida Statute Chapter 61 defines what are non-marital assets and liabilities. These include:
- Those that were acquired or incurred before the marriage, as well as properties obtained in exchange for such non-marital assets and liabilities.
- Property acquired separately through a non-interspousal gift, devise, bequest, or descent, as well as assets obtained in exchange for such properties.
- Income derived from non-marital assets during the marriage.
- Assets and liabilities that the parties clearly excluded in a valid agreement.
On the other hand, other properties are considered as marital assets, and therefore subject to division. These are:
- Properties acquired, individually by a party or jointly as spouses, during the marriage.
- Any increase in value of non-marital assets, where property appreciation is the result of efforts of either party during the marriage or from the contribution to or expenditure of marital funds or assets.
- Gifts between the spouses during the marriage.
- Other benefits, rights, and funds that accrued during the marriage in retirement, pension, annuity, deferred compensation, and insurance plans.
Part of the equitable distribution process involves a determination of relevant dates for the classification of assets and liabilities as marital and non-marital, and for valuing assets and liabilities. The cut-off date for determining marital assets of a marriage may be:
- The date when the parties enter into a valid separation agreement;
- The date specified in a valid separation agreement; or
- Filing date of a petition for divorce or dissolution of marriage.
The earliest date among the three may be the cut-off date. Anything acquired after the cut-off date may no longer be considered as marital and not subject to distribution.
As an exception to the rule on equitable distribution, the court may issue an order for an unequal division when certain factors are considered, such as:
- The duration of the marriage
- Financial circumstances of the parties
- Each party’s contribution to the marriage
- Any interruption in each party’s career or educational pursuit
The contribution of one spouse to the personal career or educational opportunity of the other.
Other relevant factors that the court may consider, that may lead to equity and justice between the former spouses.
Every case is unique, presenting circumstances that may not always result in the same court ruling regarding the determination of what is marital and non-marital, or justifying a departure in the equitable distribution between the parties. Because the burden of proof lies on the party claiming an asset to be non-marital, having an experienced family law attorney to assist in the presentation of evidence for the court to consider is crucial.
Attorneys can also help the parties enter into valid separation agreements to simplify what could have been a complicated and drawn-out battle for assets between the spouses.
Impact of Equitable Distribution
Legal conveyance of property to either spouse: A judgment made in equitable distribution will have the effect of a duly executed deed of sale, conveyance, release, or transfer, which is recorded in the county where the property is located.
Alimony: The judgment concerning marital assets and liabilities need not consider alimony that may be due to one spouse. But depending on the outcome of the equitable distribution, the court may determine whether to award alimony to a party.
The process of dividing properties involves numerous rules and complicated case law. Knowing your rights and obligations at the onset can help you understand potential outcomes in an equitable distribution, as well as take specific positions in possible negotiations for an out-of-court settlement with the other party.
If you are contemplating a divorce, it’s important to speak with a competent and experienced divorce attorney who can analyze your situation and provide appropriate legal advice based on the case evaluation.
In Tampa, Florida, the Anton Legal Group has been practicing family law for nearly 30 years. We invite you to contact us at (813) 443-5249 to arrange a case evaluation.