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Who gets what? Equitable distribution does not mean equal distribution

| Oct 9, 2020 | divorce, Property Division |

In a Florida divorce, marital property is divided according to the “equitable distribution” standard. As is often explained, dividing property equitably between spouses does not necessarily result in a 50-50 split of marital assets. Instead, equitable distribution is based in fairness and what is fair is not necessarily splitting everything down the middle or ensuring that the dollar value of total assets given to each spouse is exactly the same.

The marital estate and separate property

In property division between divorcing spouses, the first step is to identify which assets (and debts) are separate or nonmarital and which are marital and to determine their values. Nonmarital property is normally anything that one spouse owned before the marriage or received individually as a gift or in an inheritance, although the nature of a nonmarital asset can become marital or mixed during the marriage, a more complex legal issue.

Each spouse keeps their own separate property after divorce.

Marital property is anything that comes in during the marriage that is not separate property. This includes assets either spouse alone added to the marital estate, like a salary. It is the assets that end up in the marital-property column that are equitably distributed in the divorce.

In many instances, the parties can negotiate a marital settlement agreement in which they craft an agreed-upon division of property. If not, the judge in the divorce proceedings must determine equitable division.

Factors to consider

Florida statute requires that the judge make a distribution “equal” unless there is “justification for an unequal distribution” based on all relevant factors. The law includes a long list of factors that the court must consider in making equitable distribution such as marriage length, contributions of each to the marriage (including services like care of children and home), contributions of each to income and debt during the marriage, and several other factors.

Sometimes it makes sense to give a large asset to one spouse and perhaps multiple smaller assets to the other. For example, maybe one spouse should get the marital home rather than selling it and dividing the proceeds in order to let the children continue to have their home and community and not have to move. Perhaps the couple has a business that one spouse wants to keep intact going forward, so that spouse could keep the business and other assets could go to the nonowner or the one getting the business could pay a lump sum of money to the other.

Making a fair distribution sounds easy enough, but it can be complicated when the assets are complex like certain investments or foreign property, making valuation potentially difficult; when the spouses disagree on the date of asset valuation; when a certain asset has emotional meaning to both; or when one spouse suspects the other has hidden or dissipated assets.

 

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