Property Division (Equitable Distribution)

Depending on the size of your marital estate, the equitable distribution of marital assets and liabilities can easily be considered the most important financial aspect of your divorce because it may also set the basis for the court’s final determination of alimony. See section 61.075(9), Florida Statutes.

During the process of dividing the marital estate, issues can arise with the classification of property.  Any assets and liabilities acquired during the marriage will be deemed as marital property. On the other hand, assets and liabilities obtained prior to the marriage are generally considered nonmarital or “separate property” unless it falls under certain exceptions that may change the classification of that property.  Because parties tend to intermingle nonmarital with marital property during the marriage, issues pertaining to the classification of property do arise during a divorce. After the demarcation of property, the court will first award each party his or her own nonmarital property and then proceed to divide the marital property.

In Florida, courts are required to use the “equitable distribution” method when dividing marital assets and liabilities. The title “equitable distribution” does not necessarily lead to a 50/50 split of property. Although section 61.075(1) of the Florida Statutes establishes that the "court must begin with the premise that the distribution should be equal," the statute does permit for an "unequal distribution" based on all of the following "relevant" factors:

1. Each spouse's contribution to the marriage (includes the contribution made by a homemaker to the care and education of the children).
2. The financial circumstances of the parties.
3. Duration of the marriage.
4. Interrupting personal careers or educational opportunities of either spouse.
5. A spouse's contribution to the personal career or education 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. Each spouse's contribution to the purchase, improvement or enhancement of assets, and production of income or the incurring of liabilities.
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 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.
9. A spouse's intentional squander or destruction of marital assets after the filing for divorce or within 2 years prior to the filing for divorce.
10. Any other factors necessary to do equity and justice between the parties.

If the parties are unable to reach a property settlement agreement, then the court will ultimately divide the parties' marital property in what the court determines to be  fair and equitable. Any distribution of marital property made by the court must be supported by the factual findings  in its judgment or order. The court's factual findings can only be based on competent substantial evidence with reference to the relevant factors listed above. 

Unlike certain jurisdictions that utilize a community property system which mandate an automatic 50/50 division (such as California), the equitable distribution system in Florida is designed to provide its family courts some flexibility in dividing marital property. Consequently, the added flexibility may lead to unpredictable results in the division of marital property.

South Florida Equitable Distribution Lawyers

The attorneys at our firm have handled complex cases involving the division of substantial marital estates comprised of investment real estate, business interests, stocks, stock options, bonds, annuities, pensions and other retirement plans. In addition to possessing backgrounds in finance, accounting and tax law, our attorneys are also skilled and experienced advocates in family law. We are committed to protecting the assets of our clients and ensuring that there is a fair division of marital property. For more information about equitable distribution of marital property during a divorce, contact our attorneys today.