Equitable Distribution

Equitable Distribution

Equitable Distribution of the Marital Estate in Florida

When spouses divorce, there must be an accounting of and division of the marital assets and liabilities. Florida law, like many other states, follows the marital partnership concept. The spouses’ contributions to the marriage and participation in the marriage are analyzed to make sure that a fair distribution of assets and liabilities is made, and that neither spouse is short changed.

Marital v. Non-Marital Assets and Liabilities

Nonmarital assets and liabilities are assets and liabilities which were acquired or incurred by either spouse prior to the marriage. Nonmarital assets are also assets which were acquired separately by either party by means other than an interspousal gift. All income derived from nonmarital assets during the marriage are non marital assets also unless the income was treated, used, or relied upon by the parties as a marital asset. Finally, any assets and liabilities which are excluded from the marital estate by a valid written agreement are also nonmarital assets. Nonmarital assets are “set aside” as being the “separate property” and are not part of the distribution of marital assets as part of a divorce.

Marital assets and liabilities include all assets and liabilities acquired and incurred during the marriage. A key point is determining when the asset was acquired.

Commingling

Marital assets and liabilities include the appreciation of nonmarital assets resulting from the efforts of either spouse during the marriage or from the contribution of marital funds. When there has been commingling, it may be necessary to use tracing in order to make a proper determination as to whether or not a particular asset is marital or nonmarital. In general, the longer the marriage, the more likely it is that there will have been commingling which makes separate assets marital assets. In general, where there is commingling, the commingled funds are marital.

Real Property

All real property (ie. land, buildings) which are held by the spouses as tenants by the entireties, whether acquired before or during the marriage, are presumed to be marital property. It is possible to rebut this presumption, and the burden of proof is on the party seeking to rebut the presumption of marital property.

Assets and Liabilities Acquired after Separation

Generally, assets and liabilities acquired after separation are nonmarital.

An “Equitable Distribution”

The presumption is that in a divorce case that the distribution of the marital assets and liabilities should be equal. But if there is a justification for an unequal distribution then this may be allowed. Some of the factors which might justify an unequal distribution may include: 1) large disparity in contributions to the marriage, 2) economic circumstances of the parties, 3) duration of the marriage, 4) interruption of personal careers, 5) retention of the marital home for the children, etc.

Todd C. Passman, P.A. handles Family Law cases serving Fort Pierce, Port St. Lucie, Vero Beach, Stuart, and Okeechobee, Florida, and surrounding areas. Family law cases include divorce, child custody issues, visitation, spousal support, child adoption, petitions for modifications of orders, and pre and post nuptial agreements.

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If you need a lawyer for a family law matter, including divorce, child custody issues, visitation, spousal support, child adoption, petitions for modifications of orders, and pre and post nuptial agreements please contact Todd C. Passman today, at (772) 465-9806 or fill out the contact form on this page. Someone from our office will contact you right away.