An Equitable Distribution Primer for the State of Florida
The phrase equitable distribution most often arises when divorce is being contemplated. It basically deals with how spouses will divide their property and settle their joint debts. Some states follow specific 50-50 guidelines for community property distribution, but Florida uses “equitable distribution” in its verbiage. As a side note, it should be noted that more often than not this “equitable distribution” turns out to be a 50-50 split.
Initially, property must be delineated as marital or separate. Separate or non-marital property will not be subject to any sort of split. Separate property is defined as property owned prior to the union, any item given during the marriage and called a gift (NOT INCLUDING gifts from a spouse) or an inheritance. Separate property can also be that which is so defined by something like a pre-marital agreement. If separate property has provided some sort of an income, that income is also considered separate property unless obtained funds have been comingled with obviously marital funds. **It should be noted here that if that separate property appreciates in value as a result of MARITAL monetary contributions, this separate property becomes marital property for purposes of divorce negotiations.
In the state of Florida, marital property will incorporate all assets and debts acquired therein, unless specifically stated otherwise in writing. Joint or singular title will have no bearing. An example of this would be a credit card. If the card has only one spouse’s name on it, it will STILL be considered a joint responsibility. Sample assets can include but are not limited to property, money, retirement accounts (whether or not they have achieved vested status) or other benefits offered as “payment” presently or at some future point in time, etc. TAKE NOTE. If said benefits started accruing BEFORE the marriage a determination on the percentage of said “funds” which may be considered marital property may be necessary. Likewise, if something of value was singularly titled PRIOR to a marriage and it is rewritten to become a jointly owned item then it WILL be considered marital property for purposes of distribution! Deciphering marital from separate properties/funds may well come down to being able to actually trace the source of funds for all transactions. Financial record keeping can play a crucial role in preserving one’s assets.
How will assets ultimately be divided? Couples can certainly try to divide property privately. Impartial mediators can also be of assistance. If these agreements have been reduced to writing and, if both spouses can cite consultations with lawyers, they are usually accepted by the Courts. Those situations not negotiable will be decided by an arbitrator or a judge. Usually there will be an even distribution of assets BUT there are exceptions taken into consideration. Judges may decide to look at:
- Financial circumstances of each spouse
- The actual length of the marriage
- Debts and liabilities specific to EACH spouse
- Each spouse’s definable contributions to the marriage
- Whether or not one of the spouses had to stop a career or interrupt pursuit or an educational degree for the sake of the marriage or the other spouse’s same advancement
- If minor children are involved, the advisability of allowing them to remain in the marital home
- Whether one or both spouses intentionally and wantonly spent down/ruined assets after filing for divorce or in the two years immediately preceding such a filing
Debts are treated similarly to assets. Generally speaking debts are divided evenly and payment of said indebtedness is assigned to one spouse or the other. Debts can be apportioned unevenly at the discretion of the judge; fairness is the overall incentive. *** If the judge assigns payment responsibility of a specific debt to your spouse make sure to REMOVE YOUR NAME from any paperwork associated with same.