If you are have gone through, are currently going through or will in the future go through a divorce this is a term that you have heard or should know about. Equitable Distribution in a divorce has to do with the distribution of marital assets and marital liabilities. Florida Statute 61.075 identifies what is considered marital and nonmarital as it relates to a divorce.
What is considered marital and nonmarital
Pursuant to Florida Statute 61.075(6) it states “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.
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.
c. Interspousal gifts during the marriage.
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.
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.
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.
4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.
(b) “Nonmarital assets and liabilities” include:
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;
2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
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;
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; and
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.”
DISSIPATION OF MARITAL ASSETS
It is important to know these definitions as it helps you understand what assets/liabilities will be divided in your case. In addition, if a party makes a transfer of a marital asset such as cash in a bank account immediately prior to filing a divorce to a family member, friend or some other situation that has those funds “gone” does not means those funds are forever gone and belong solely to the person who took them. There is a factor in this statute that states that the courts can also provide an unequal distribution of the assets if the following factor exists: “…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 is not the only factor the courts look at and consider when determining if an unequal distribution should be made.
There is so much more to know about equitable distribution. Click here for more information on property distribution. If you find your self going through a divorce or about to go through a divorce call Orlando Divorce Attorney Michael Ferrin and Victoria Anderson at 407-412-7041 for your free consultation.