Florida divorce law calls for the “equitable” distribution of marital assets and liabilities. While this sounds fair, the keyword in the law is “equitable,” which doesn’t necessarily mean a right-down-the-middle 50/50 split. In fact, the law provides judges with significant subjective discretion to determine what might constitute an equitable distribution in each divorce case.
As the family lawyers at Tallahassee-based Cowhey + Ward know, equitable distribution awards in some non-negotiated divorce cases significantly favor one spouse over the other. Let’s take a closer look at how Florida divorce law works to divide assets and debts in the dissolution of a marriage.
What Assets and Debts Are Included in the Distribution?
Florida divorce law categorizes assets and debts as either marital or nonmarital (separate). Except for certain circumstances, marital assets include everything the spouses acquired during the marriage, whether jointly or apart. Nonmarital assets include property owned before the marriage, obtained as a gift (excluding those from the other spouse) while married, or through inheritance. Note that the divorce court may rule some apparently nonmarital property as marital in certain situations in what is known as commingling. For example, a house solely owned by one spouse pre-marriage may be ruled as marital if the other spouse helped pay its mortgage or other expenses during the marriage. Or an apparent pre-marital bank account held by one spouse may be ruled as marital if the other spouse made any deposits into it, and/or withdrawals towards marital expenses from it, during the marriage.
Debts incurred during the marriage are treated similarly. While one spouse may have accumulated significant credit card debt or taken out a student loan, the court will treat it as a marital debt subject to equitable division between the spouses.
How the Divorce Court Equitably Divides Assets
Under the law, Florida divorce courts begin asset distribution with the premise that property will be divided equally. However, the law allows unequal distribution in the interest of “[doing] equity between the parties” if justified by any of 10 different “relevant factors.” They are:
- Contributions each spouse made to the marriage, including childcare and homemaker services.
- The economic circumstances of each spouse.
- Marriage duration.
- Any personal career or educational opportunities interrupted during the marriage.
- Contributions made by one spouse to another to advance their career or educational opportunities.
- Potential desirability of retaining any asset “intact and free from any claim or interference by the other party.”
- 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 nonmarital assets of the parties.”
- The desirability of retaining the marital home in the equitable and best interest of providing a residence for any dependent children of the marriage.
- Any “intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the [divorce] petition or within 2 years prior to filing the petition.”
- “Any other factors necessary to do equity and justice between the parties.”
As previously suggested, this gives divorce judges significant leeway in being able to sway the distribution in favor of one spouse over the other.
How the Court Equitably Divides Debts
No matter which spouse incurred them, debts almost always become marital for the purposes of equitable division between spouses. As with assets, the court will begin with a premise of equal division; however, in the interest of equity, the division often favors one spouse over the other. For example, courts can award much of the debt to higher-earning spouses if the other spouse’s income is limited or non-existent.
Divorce Courts Frown on Dissipation of Assets
Some spouses facing divorce hide or mismanage assets as part of a pre-divorce strategy to minimize potential losses. Known as the dissipation of assets, common approaches include:
- Selling assets
- Transferring money to a separate account
- Gambling
- Reckless spending
- Intentionally reducing the value of marital property
If a spouse can prove that the other spouse intentionally engaged in the dissipation of assets, the court will factor this into its equitable distribution of assets. At the least, the value of the dissipated assets will be awarded to the wronged spouse.
Optimize Your Asset Distribution with an Experienced Tallahassee Divorce Lawyer
Asset distribution is often one of the most complicated and contentious elements of a divorce in Florida. As such, you should always consult with a skilled divorce lawyer if you’re facing an impending divorce. Depending on the circumstances, your divorce lawyer may be able to negotiate a settlement agreement with your spouse that includes a fair distribution of assets. Your lawyer can also help protect your interests when the divorce court takes the primary role in determining distribution and can help you uncover asset dissipation if suspected.
Cowhey + Ward’s Adam Cowhey has extensive experience helping his Tallahassee area clients secure favorable divorce outcomes through negotiations or in divorce court. To learn how Cowhey + Ward can help you with your divorce, contact our Tallahassee-based office today at (850) 222-1000.