Equitably Distributing Marital Property in Your Florida Divorce

Property division is often a contentious subject in divorce. When emotions or the need to “get even” drive the proceedings, it is easy to get drawn into a legal battle that may drain resources and drag out the process. At Orshan, Spann & Fernandez-Mesa, we are committed to resolving conflicts over the distribution of your marital estate without sacrificing your rightful share.

Marital Property vs. Non-marital Property

Before equitably distributing the marital estate, the court must first determine whether assets or liabilities are either marital or non-marital. Non-marital property is not subject to division in divorce. This includes property that a spouse brought to the marriage (such as a house, a business, pension funds) or assets or debts acquired in the name of one spouse during the marriage but unconnected to the marriage (such as an inheritance or personal injury award). Typically, each party is awarded their separate, non-marital property upon a dissolution of the marriage. Marital property includes all assets (and debts) that were acquired or incurred during marriage as a result of marital labor or funds and all property or liabilities that are not otherwise determined to be non-marital. Typically, marital property is equitably divided upon a dissolution of the marriage. The starting point for equitable distribution is an equal division of the marital estate, although there are numerous factors that are considered by the court in deciding whether there should be an unequal division of the estate. Some of those factors include:

• The contribution to the marriage including care and education of children and homemaking services.

• The economic circumstances of the parties.

• The duration on the marriage.

• The contribution of one spouse to the personal career or educational opportunities of the other spouse.

• The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

• The 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 and nonmarital assets of the parties.

• The desirability of retaining the marital home as a residence for a dependent child.

• The intentional dissipation, waste, depletion, or destruction of marital assets before or after the filing of the petition for dissolution of marriage.

• Any other factors necessary to do equity and justice between the parties.

Sometimes, particular assets contain both marital and non-marital components and the division of those assets becomes more complicated. If a non-marital asset increases in value during the marriage, there must be a determination as to whether that increase in value was “passive” (e.g. the result of market forces having nothing to do with the efforts of either party) or “active” (e.g. based on one of the spouse’s contributions of labor or funds to the growth of the asset). Marital assets include the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage or from the expenditure of marital funds. For example, if one spouse owned a business at the time the parties were married and that business increased in value during the marriage as a result of one or both spouses working at the business, the increased value of the business will likely be deemed a marital asset subject to equitable distribution. Or, if one spouse provided a down payment for a house before marriage but both parties contributed to the monthly mortgage and paid for improvements to the property during the marriage, the enhanced value of the property may be deemed to be a marital asset. Each different type of asset requires a separate analysis to determine whether that asset will be considered to be marital or non-marital by the court.

Experienced Property Division Attorneys

Our divorce lawyers have extensive experience in these complex marital property division issues, and we will fight to ensure you receive your share. We are also skilled at analyzing all asset issues (such as those involving closely held businesses, professional practices, corporations, investments, savings and financial accounts, pension and retirement funds, deferred compensation accounts, marital homes, real property, automobiles, boats, art work, jewelry, other personal property, and all other assets) and negotiating creative agreements, such as tradeoffs allowing one spouse to keep a particular asset when that is warranted.