Frequently Asked Questions About Equitable Distribution In Florida

What do you mean by “equitable distribution?”

During divorce proceedings, both spouses’ nonmarital assets and liabilities will be set aside and not included in the division of marital property. The remaining property – the marital assets and liabilities – will be divided between both parties equitably and fairly. The courts must have a justification if they opt to divide marital property unequally between the two parties.

What criteria does the court use when determining if there can be an unequal distribution?

The court will be considering all relevant factors, including:

• The contribution both spouses make to the marriage, including time spent raising the children
• The economic situation of both parties
• The length of the marriage
• The interruption and/or financial contribution of educational and professional opportunities for either party
• The financial benefits or desirability of keeping a specific asset intact such as a business, a corporation or a professional practice
• The contributions made to the acquisition of assets and the incurring of liabilities for both marital and nonmarital property
• The benefits of keeping the marital home as the primary residence for the children, as long as it is equitable, until the child is emancipated
• Any dissipation, depletion, destruction or waste of marital assets that occurs within two years of filing the divorce petition
• Any other factors necessary to do equity and justice between the parties

Are the earnings that I personally made considered marital assets, even though my spouse had nothing to do with those earnings?

Yes. Any assets and liabilities acquired during the course of the marriage, whether individually or jointly, are subject to equitable distribution.

I have assets (and liabilities) from prior to my marriage that have continued to increase in value by my sole work and effort. What happens to them?

The portion of the enhancement of nonmarital assets that results either from the efforts of either party during the marriage, or from the contribution to or expenditure of marital assets, will be marital property during divorce proceedings.

Are the gifts that I gave to or received from my spouse during the marriage included in “marital assets and liabilities” that are subject to equitable distribution?

Yes. Any gifts given by either spouse to the other spouse during the marriage are marital assets for purposes of equitable distribution.

Are the pension, profit-sharing and retirement plans that we own also subject to equitable distribution?

All vested and nonvested benefits gained during the marriage are subject to equitable distribution. This includes assets in retirement plans, pension plans, profit-sharing and other accounts. Retirement benefits are often one of the most valuable assets a married couple accumulates. The attorneys of Rubinstein & Holz and our consultants can provide advice concerning the appropriate valuation and division of retirement plans.

What about the house that I owned before our marriage but later transferred into both of our names during our marriage?

The court will likely rule that it is a marital asset. Under Florida law, any real property held by the parties is presumed to be a marital asset. This is true for property acquired before or during the marriage. The burden of proof is on the individual who is claiming that the property in question is nonmarital. Similarly, any acquired assets or incurred liabilities during the marriage are marital property, unless explicitly established as nonmarital assets or liabilities.

What about the things that I owned before our marriage?

The general answer is that they are nonmarital and are not subject to equitable distribution. Assets and liabilities from prior to the marriage are nonmarital under Florida law and will not be divided equitably. There are exceptions when nonmarital assets and liabilities are commingled with marital assets and liabilities.

Is the income that I derived from my separate nonmarital assets during our marriage subject to equitable distribution?

It generally is not, but there are exceptions. If both parties relied upon the income or the income derived from your efforts at work, it will likely be subject to equitable distribution.

I received gifts during my marriage from my brother, parents and friends. Are those marital assets?

Gifts not received from a spouse are typically nonmarital assets. However, they may become marital property if you made a gift to your spouse or commingled them with marital assets. For instance, commingling by depositing cash into your and your spouse’s joint account where each of you had access to the funds — funds so intermingled lose their separate identity and become untraceable, and thus are generally considered to be marital.

Would the answer be different if the gift was to both my spouse and me?

Yes, the gift would be to the marital unit and be a marital asset.

If I inherited an asset during my marriage, will my spouse be able to claim part of that in our dissolution?

Normally not. Assets are nonmarital when acquired separately by either party by bequest, devise or descent. Therefore, they are not subject to equitable distribution. However, they may become marital property if you used them to make a gift to your spouse or commingled them with marital assets.

I have a premarital agreement that excludes all my premarital assets from any claim by my spouse. Is that agreement binding, and will it protect me?

Probably yes. All assets and liabilities not included within the marital assets and liabilities due to a prenuptial agreement, postnuptial agreement or another valid written agreement are nonmarital under Florida law.

What is the termination date that the court will use for determining our marital assets and liabilities?

The court will generally use the earliest of the following dates:

• The date the couple establishes a valid separation agreement
• Another date specifically mentioned within the separation agreement
• The date of the filing of a petition for dissolution of marriage
• The date the trial judge views to be just and equitable under the specific circumstances of the case

What is the termination date that the court will use for determining the value of our marital assets and liabilities?

The judge will determine a date that is fair and equitable under the specific circumstances of the case. It is possible for different assets and liabilities to be valued at different times based on the judge’s discretion or as circumstances require.

If one of us gets the entire family interest in a key marital asset (such as an interest in our business, corporation or professional practice), this would upset any equitable distribution. How should we or the court deal with this problem?

To obtain an equitable outcome, the court may order the spouse who maintains the key asset to provide a monetary payment to the other. This can be made in a single lump sum or in installments over time.

Even after all the work by the court in fashioning an equitable distribution of our assets and liabilities, the result may not be adequate or fair to one or both of us. Are there any additional tools available to us or the court to further fine-tune an agreement or ruling?

Yes. Equitable distribution is just one tool available to the court and the parties. Additional tools include spousal maintenance, child support and the exclusive use of property, among others.