Written by: Kenneth E. Rhoden, Esquire
This article briefly explains how marital assets and debts are divided in a divorce. It discusses what trial courts actually do and how that sometimes conflicts with the statutes and case law. It also explains the statute the legislature enacted and, for people who really want some in depth information, includes citations and explanations of a few court decisions. This article is an overview. For a complete explanation contact our Melbourne or Cocoa Village office.
Florida Statute 61.075 is the main statute in Florida that sets out how debts and assets should be divided. It provides for the “equitable distribution” of assets and liabilities. It does not say ‘equal’, and ‘equitable’ does not mean the same as equal. Equitable means fair and gives a court some discretion in how to make a distribution. We will address each paragraph and subsection of the statute.
Florida Statute 61.075 (1) says:
In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
The first thing a court will do in dividing debts and assets is to determine what assets and debts are part of the marital estate and what are separate. Separate debts or assets are not subject to being divided by the court. The court does not have jurisdiction over nonmarital assets or debts.
Once the court has determined which assets and debts are nonmarital the court will look carefully at the marital debts and assets. As a starting point the court must use an equal distribution. This means that if a marriage has only assets then the dollar value amount awarded to each party must be equal. If the marriage has only debts, then each party should be responsible for the same amount of debt. If the marriage has assets and debts the debts each party is responsible for is subtracted from the assets they are awarded.
The last phrase of 61.075(1) authorizes a court to make an unequal distribution under certain circumstances, which are listed in the statute. In practice, courts are very reluctant to make an unequal distribution. The proof must usually be clear and overwhelming.
In Kyriacou v. Kyriacou, 173 So. 3d 1111 (Fla. 2nd DCA 2015) the court made an unequal distribution. The court relied on the husband’s superior ability to earn wages as compared to the wife. This reason was not sufficient and the case was reversed.
Nevertheless, in certain cases a court will make an unequal distribution. The statute sets out ten factors a court can consider. They are listed here in the paragraphs (a) through (j) with explanations following each bolded factor:
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
This factor might apply where one party has made an extraordinary effort during the marriage far beyond what would normally be expected and usually far beyond the other parties’ contribution to the marriage. You might have an argument if one party rarely works neither at a job or around the home and the other party works a regular job and then comes home and provides almost all of the care for the parties ten children. In Russ v. Russ, 576 So. 2d 414 (Fla. 3rd DCA 1991) the trial court found the wife made an extraordinary effort and the husband remained idle, drinking large quantities of beer. The trial court made an unequal distribution which was upheld on appeal.
(b) The economic circumstances of the parties.
This factor could be used where there is a vast difference in the parties’ wealth. For example in a ten year marriage where the wife is disabled and has no assets of her own and the only asset of the marriage is a $150,000.00 home that the wife lives in. The husband owns $15,000,000.00 worth of nonmarital property. A court might be persuaded to give the wife the home.
(c) The duration of the marriage.
A 30 year marriage is a lot different than a 1 year marriage. However, all things being equal mere length alone is not a significant factor. Long established patterns of conduct could carry more weight. This factor is also intertwined with the alimony statute.
(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.
These factors are similar and overlap. A court can justify an unequal distribution where one person sacrifices their ambition or career for the benefit of the marriage. This frequently happens where one spouse quits a good job to allow their spouse to pursue a lucrative career. Also, one spouse may work two jobs to support the family and allow the other spouse to become a doctor or lawyer. After graduation the marriage suddenly disintegrates. A court could find that an unequal distribution is appropriate. Unfortunately assets may not have accumulated during the marriage so there is little for a count to divide. And sometimes there is a large student loan, which is a marital debt the court must distribute.
(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.
If there is an ongoing business that is generating income a court will be reluctant to harm or destroy the business. If a marriage owns two convenience stores a court might award one store to each spouse. If the marriage owns one McDonald’s restaurant it may not be wise to award each person a portion of the business. Conflict and a decline in profit may occur. If the court awards the business to one party, there may not be sufficient assets to offset the value of the restaurant. An unequal distribution may result.
(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.
A spouse may be diligent and hardworking which results in wealth being created. If the effort is extraordinary a court could make an unequal distribution. On the other hand, a court can consider if a spouse makes poor financial decisions. This would include careless but not intentional dissipation of wealth. Gambling could be an example in certain circumstances.
(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.
Children who have been raised in a particular home frequently develop an emotional connection to the home and the life they have established while living in the home. A child could be facing losing their home in addition to their parents being divorced. A court will try to avoid having a child hit with this double trauma. For the benefit of the child a court may award the home to one parent. This can be outright or until the youngest child turns 18 years of age. A former spouse who is out of the home can be ordered to make a contribution to the mortgage payment. When the children are no longer minors the home can be sold and the proceeds fairly distributed.
(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.
This factor deals with two situations. In the first a spouse intentionally destroys marital property after a petition for dissolution of marriage is filed. This could be done out of hatred for the other spouse or because of emotional problems. A recurring example is where the Husband, yes it is almost always the Husband, physically (such as with a chain saw) cuts the house or the car in half. A Florida court would then have sufficient cause to make an unequal distribution. More common is where one spouse goes on a spending spree buying a car, clothes, jewelry or eating at expensive restaurants. When such behavior occurs after the petition is filed it is easier to show the spending is made with the intent to deplete marital assets.
The second situation is where wasting of assets takes place in the 2 years prior to a petition being filed. Intent is harder to prove in behavior that takes place in the two years prior to the petition being filed. A spouse may be having a midlife crisis and buys a sports car or has plastic surgery. The motive behind this conduct may be the pleasure of driving a sports car or to have less wrinkles. Proof of intent to dissipate assets can sometimes be found in emails or text messages.
Notice the statute does not say a court is prohibited from considering waste or destruction of marital assets occurring more than two years prior to the filing of the petition. Proof of intent becomes harder to show the more remote the conduct. Memories fade and documents are lost. However, if proof is available there is no limit to how far back you can go to show intentional waste of assets.
(j) Any other factors necessary to do equity and justice between the parties.
This factor is as wide as human experience and the skill of your attorney. A good place to start is to look at Florida Statute 61.08, which is the alimony statute. The factors listed in F.S. 61.08 (2) overlap and could be argued as reasons for an unequal distribution.
Now back to 61.075:
61.075 (2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor’s estate to the obligee or the obligee’s estate, unless otherwise agreed to by the parties.
Florida Statute 61.075(2) tries to make sure that when a cash payment is ordered as part of equitable distribution that the payment is actually made. The statute makes the award effective immediately upon the entry of the Final Judgment of Dissolution of Marriage. However, the statute does not automatically make the cash payment happen. It only creates a debt owed from one party to another. If the money is in a joint account, the party owed the money should immediately take their cash payments. If you cannot get control of the money, then you may be in the position of trying to collect a debt from your former spouse. It can be difficult and expensive to collect a debt. In many cases a cash payment is to be avoided.
61.075 (3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
Florida Statute 61.075(3) tells the court that it must put written factual findings in the Final Judgment of Dissolution of Marriage. A factual finding is the court making a determination of what it believes are the true facts of the case.
For example, if one party testifies that the marital home has a value of $250,000.00 and a home appraiser testifies the home has a value of $200,000.00 the court could find the appraiser more credible. The court would then write in the Final Judgment something like this:
- The husband testified the marital home has a value of $250,000.00.
- The wife’s expert home appraiser testified that in his opinion the home has a value of $200,000.00.
- The court finds the expert conducted an extensive investigation of home sales of comparable homes in the area and accepts the expert opinion that the home has a value of $200,000.00.
- This is a factual finding that the home is worth $200,000.00.
Subsection (3) also tells the court to put specific written findings of fact in a Final Judgment as to four factors covered below in sections (a) through (d):
(a) Clear identification of nonmarital assets and ownership interests;
In the Final Judgment the judge must specify what assets are nonmarital. These assets are then off the table for consideration of equitable distribution. Sometimes a court will rule that an asset is not a marital or nonmarital asset but is a third party asset. For example, where a sibling of a spouse “gives” a car to the spouse but never changes the title into the spouse’s name. That car remains a third party asset. In Noormohamed v. Noormohamed, 179 So.3d 379 (5th DCA 2015) the trial court ordered a wife to return jewelry to her mother-in-law. The appeals court reversed holding the trial court could not adjudicate the property rights of a nonparty.
Courts also must decide if some assets are part marital and part nonmarital. This can happen where a retirement plan has been accumulating wealth for a period of time before the marriage. After marriage contributions continue to be made to the retirement plan from marital funds. In the event of a divorce the court will only divide the portion of the plan accumulated after the marriage. For example, a woman works for Harris Corporation in Palm Bay for 7 years and has a retirement plan worth $70,000 when she marries her husband. They are married 10 years and the plan is now worth $270,000. The original $70,000 is separated with any gains or losses and the remaining funds would be a marital asset.
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
The court must specify what assets are marital along with the value. In Pierre v. Pierre, 185 So. 3d 1264 (Fla. 4th DCA 2016) the trial court failed to make findings of the value of a home, a vehicle, and a retirement plan. The appeals court reversed the trial court and remanded the case for the trial court to place a value on the assets. The court should put in the Final Judgment language that the parties own a home in Viera with a value of $300,000. The court does not have to put values on every bit of property down to the last plate and hammer. Typically, parties will divide personal property without court intervention. If the parties do not, the court may quickly resolve the issue by saying, “The husband is awarded the contents of the garage and study, the wife is awarded the contents of the kitchen and master bedroom.” The court does not have to explain why it awards a spouse a specific asset.
People do sometimes become emotionally attached to certain marital property and will spend more on attorney fees fighting over the property than the property is worth. There have been particularly vicious fights over the family pets.
If the parties cannot decide how particular property is to be divided, the court will decide. The court then “awards” a spouse an asset. The Final Judgment should not leave any marital property not awarded to one spouse or the other.
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
Marital debts must be specifically identified and distributed in the Final Judgment. Often a debt will follow the asset. The spouse who gets a car would normally be responsible for the debt on the car. It is not a good idea to have one party responsible for the other parties’ debt. For example, where a wife has a credit card debt in her sole name but the court orders the husband to pay the debt. If the husband does not pay the debt, the credit card company comes after the wife for the payment. The Final Judgment cannot protect the wife from the credit card company and the wife would have to sue the husband to force the husband to pay her. Collecting the debt from the husband may be difficult or impossible.
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.
A court must specify in the Final Judgment who gets which assets and debts. If the value awarded each spouse is roughly equal, the court does not have to explain why it awarded a particular asset or debt to a particular party. Such a requirement could be read into the statute but appellate courts have not reversed on such grounds.
61.075 (4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.
A dissolution of marriage action ends when a Final Judgment is filed with the Clerk of the Court. The Clerk records the judgment, which means they assign the document a number and keep the document so it can be retrieved. In Brevard County, the Clerk stores the records electronically. The Brevard County Clerk of the Court has offices in Titusville, Viera and Melbourne.
When the Final Judgment is recorded, awards of assets, be they a house, a car, or a toaster, can be enforced by a court or law enforcement. To illustrate, sometimes in a divorce, a party is ordered to sign a quit claim deed giving up all of their interest in a martial home. If they refuse to sign the quit claim deed, the recorded Final Judgment acts as a deed. The owner of the home now has clear title to the home and can sell, refinance, or mortgage the home. The same principle applies to property that does not have a title like a diamond ring or a refrigerator. If another person has the property, you can take legal action to force the transfer of the property. You would get a Writ of Replevin from the court that law enforcement could then enforce.
61.075 (5) If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order may be entered at any time after the date the dissolution of marriage is filed and served and before the final distribution of martial and nonmarital assets and marital and nonmarital liabilities.
(a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.
(b) The court shall specifically take into account and give appropriate credit for any partial distribution of martial assets or liabilities in its final allocation of marital assets or liabilities. Further, the court shall make specific findings in any interim order under this section that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.
(c) Any interim order partially distributing marital assets or liabilities as provided in this subsection shall be pursuant to and comport with the factors in subsections (1) and (3) as such factors pertain to the assets or liabilities made the subject of the sworn motion.
(d) As used in this subsection, the term “good cause” means extraordinary circumstances that require an interim partial distribution.
F.S.61.075. (5) establishes the procedure to follow when a party seeks an interim partial distribution. An interim partial distribution is where a party wants some of the marital assets awarded to them while the divorce is pending. The requirements are strict and courts rarely make an interim partial distribution. However, in a case of dire need and no harm to the other party a court can be persuaded to make an interim partial distribution.
One reason courts are reluctant to consider an interim partial distribution is because the hearing can be as lengthy and complex as a final hearing. The court has to be informed of all the parties assets and debts to make sure the award is equitable and the other party will not be short changed in the end.
The statute requires “good cause” be shown and defines good cause as, “extraordinary circumstances that require an interim partial distribution”. Notice the word “require”. The standard is not that an interim partial distribution would be helpful, or fair, or nice, but that the distribution is required.
The distribution could be required where a wife lost her job, is going into foreclosure on a nonmarital home that she owns in Palm Bay, and is the sole support for three children from a prior relationship. The current marriage has sufficient marital assets that can be divided and awarded to the wife with plenty of assets left to ensure a fair final distribution and the final resolution of the case is many months away. To prevent the home from being lost and the wife and children from being penniless a court might find a partial equitable distribution is required.
61.075 (6) As used in this section:
(a) 1. “Marital assets and liabilities” include:
a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
Florida Statute 61.075(6)(a)1. defines marital assets and debts as debts or assets acquired during the marriage. During the marriage is after the actual legal marriage until the petition for dissolution is filed. Being engaged or separated does not count. Engagement rings are given before the marriage and are nonmarital property.
b. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
If you use marital labor during a marriage, and that work results in the increase in value of a nonmartial asset, that value is marital property and subject to equitable distribution. If you own stock and during the marriage you occasionally make a trade, a court would probably find any increase in value nonmarital. On the other hand, if you own stock and during the marriage you stay up late several nights a week making trades, a court would probably find any increase in value is martial. The same principle would apply to a home. Normal maintenance does not create marital property, adding on a room might.
If you use marital funds to buy more Microsoft stock, then the increase in the total value of the Microsoft stock due to purchases during the marriage is a marital asset. If you are not careful combining marital and nonmarital funds, then the entire asset can be deemed marital. This combining is called commingling. It may be possible to separate groups of stocks purchased at different times but the burden is on the person claiming the asset is nonmarital.
If marital funds are deposited into a nonmarital checking account, the entire account will quickly become commingled and a court will find the entire account a marital asset. It is like pouring a cup of water into a bucket of water. You do not get to remove the same amount of water; you have to remove the exact same water.
c. Interspousal gifts during the marriage
When one spouse uses either marital or nonmarital assets to purchase a gift for the other spouse the gift becomes a marital asset. The size of the gift does not manner. A spouse who uses $300,000 of their nonmarital funds to buy a house in Palm Bay for the other spouse, and titles the house in both names, has created a marital asset. Under F.S.61.075(6)(a)4. Clear and convincing evidence is necessary to overcome the gift presumption.
d. All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
Section d. was enacted because courts were struggling with how to handle certain retirement assets. For example, a wife works for Lockheed Martin in Melbourne, Florida. Part of her compensation is stock options. The stock options can be a vested benefit and given a specific dollar value by a company or the judge. The value would be a marital asset. Deferred compensation or profit-sharing plans can be much more complex and may take expert testimony to determine a value.
61.075 (6) (a) 2. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
Holding property as tenants by the entireties can protect property against a spouses’ separate creditor and provides for the surviving spouse to own the entire property if the other spouse dies. Neither spouse can sell or encumber the property without the consent of the other spouse. F.S. 655.79 provides that a tenancy by the entirety is created when a husband and wife have a joint bank account.
To create a tenancy by the entirety the owners must be married, they must take ownership at the same time, their ownership interest must be the same and there must be a right of survivorship.
It is difficult but not impossible to show an asset held as tenants by the entireties is nonmarital. Documentary proof or an admission could be sufficient.
61.075 (6) (a) 3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
The same standard as explained in section 2. above applies to personal property.
Notice the statute says “titled”. Cars, trailers, boats, and airplanes commonly have titles or registrations but any personal property can have a title.
61.075 (6) (a) 4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.
If a third party gives a married couple a gift it is presumed that the gift is to both parties and the gifts is therefore a marital asset. Large assets may have a title or other documents that can be produced to show sole ownership by one spouse. For example, a wife is given a car by her brother, the car is titled in her sole name and a birthday card says, “To my sister, enjoy the truck”. A court may find such evidence sufficient to overcome the gift presumption.
61.075(6)(b) “Nonmarital assets and liabilities” include:
61.075 (6) (b) 1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
The statute defines nonmarital assets and liabilities as assets or liabilities acquired before the marriage. Before the marriage means just that. An engagement or imitation marriage ceremony is not sufficient; a legal marriage is required. Living together as though husband and wife, even for decades does not create a marriage. Florida does not recognize common law marriage. See Florida Statute 741.211.
61.075 (6) (b) 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
A gift from a third party- a friend- or relative- that is made to only one spouse is nonmarital property. Proving the gift was to one party can be difficult. Assets acquired by bequest, devise, or descent are usually easier to prove because there is a will or other written document or the asset is acquired by operation of law.
61.075 (6) (b) 3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
If a party owns nonmarital bonds that provide an income and that income is used to buy more bonds, then the income is a nonmarital asset as are the bonds. However, if the income is just spent as part of the regular family practice then the income is marital.
61.075 (6) (b) 4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
A premarital agreement or postmarital agreement can determine what is, or is not, a martial asset or liability. The agreement can set different rules for what becomes a marital asset or liability than what the law provides.
61.075 (6) (b) 5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.
If one spouse forges the signature of the other spouse on a credit card or other loan application, the debt incurred will be assigned by the court to the offending spouse. Unfortunately, the troubles of the victim spouse may not be over. The credit card company or other lender may not be cooperative in releasing the victim spouse from the loan.
Proving a spouse forged the other spouses’ signature can be difficult and expensive. The court can consider the extra costs and attorney fees the victim spouse incurred in the award of attorney fees under F.S.61.16. Also the bad faith conduct of the offending spouse can be considered under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) Rosen interpreted F.S. 61.16 and held that the court could consider any fact in the case in determining attorney fees.
61.075 (7) The cutoff date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require.
Marriage is a partnership and that partnership ends when a petition for dissolution of marriage is filed with the Clerk of the Court. The court does not have discretion to change the cutoff date. A spouse who buys a new truck on Monday and files for divorce on Tuesday created a marital asset, the truck, on Monday. If the truck is purchased on Wednesday, the truck is not a marital asset. The court does have a lot of discretion on how to distribute the debts and assets and compensate a non-offending spouse.
61.075 (8) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual property; affect the laws of descent and distribution; or establish community property in this state.
This section helps cut down on a lot of trivial litigation. By establishing a presumption that transactions during the marriage create marital assets or liabilities the legislature is putting into law what the parties almost certainly intended at the time. Only when a divorce is filed does a party, or their lawyer, want to claim a transaction was nonmarital. Maybe it was but you are going to have to offer substantial proof.
61.075 (9) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.
When ruling on a divorce case the court will determine equitable distribution before establishing alimony. To establish alimony a court must first consider the need of one party for alimony and the ability to pay of the other party. Florida Statute 61.08(2)(d) specifically tells the court to consider the financial resources of each party before determining alimony. The court must know what assets and liabilities a spouse has in order to determine need and ability to pay.
61.075 (10) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.
To make the distribution of assets equitable, courts can order one spouse to pay money to the other spouse. This sets up a creditor-debtor relationship. If the payments are not made a spouse may end up with a judgment ordering payment. The judgment may or may not be worth the paper it is written on. In Lynch v. Lockyer, 180 So.3d 1120 (5th DCA 2015), as part of equitable distribution, the wife received fifty percent of the marital portion of the husband’s Florida Retirement System monthly benefit. The husband was injured and began to receive disability benefits. Because he was receiving disability benefits the husband was no longer eligible for the FRS pension. The now former husband refused to pay the former wife and the trial court held him in contempt. The appeals court reversed and ruled equitable distribution is not enforceable by contempt.
The former wife may have trouble collecting what is technically her money. The divorce attorneys at Mario, Gunde, Peters, Rhoden & Kelley can help you avoid this harsh result.
61.075 (11) Special equity is abolished. All claims formerly identified as special equity, and all special equity calculations, are abolished and shall be asserted either as a claim for unequal distribution of marital property and resolved by the factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property.
This section of the statute became effective in 2009. The language that must be in a petition changed substantially but the underlying principles did not. A failure to properly plead your claim can lead to the claim being barred. See Davis v. Davis, 32 So.3d 743, (Fla. 1st DCA 2010) for a case that began using special equity language but ended using unequal distribution language.
That concludes our brief look at the statute and far more is left out than could be included. Remember this is only an overview. Please call for a consultation to discuss how this statute may apply to your dissolution of marriage.
Divorces are held before a court of equity not a court of law. This means a court will do everything possible to achieve a fair outcome. This is particularly true when dealing with issues like timesharing and authority over children, alimony, and attorney fees. However, in dealing with an equitable distribution issue a court may be less forgiving and you need to get it right the first time.
Our attorneys have experience in dividing marital property in other countries, states, and counties. On behalf of our clients we have fought over corporations and condos, jewelry and junk, property and pets. Call us today for a consultation. We serve all of Brevard County from Palm Bay and Grant to Titusville and Mims.