Equitable Distribution

In distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including the factors as specified in Florida statutes.  Equitable distribution is the place to start in analyzing a divorce case.  A determination of how marital assets and liabilities are divided will usually impact most other aspects of a divorce case.  Income producing properties may impact alimony and child support.  Interest income on investments, real or imputed, may impact alimony and child support. 

Allocation of assets and liabilities may impact the needs of a support-seeking spouse.  It also may impact allocation on payment of attorney’s fees and costs.  Consideration of non-marital assets may also impact support issues and attorney’s fees issues.  Every asset and liability must be identified, classified, and valued.  This includes marital and non-marital assets and liabilities.  Then, each marital asset and liability must be distributed between the parties.  The premise is for an equal division of marital assets and liabilities.  If the court elects to depart from an equal division of the marital estate, there must be findings of fact in support of that determination. 

Marital assets and liabilities are defined pursuant to Florida statute and that definition is specific, but in general, anything acquired from the point of marriage to the point of filing a petition for divorce is marital.  There are clearly exceptions to this, and this does not take into consideration a prenuptial agreement, for specifics, you need to look at the law, but as a rule of thumb, it is the case that if an asset or liability was acquired during this time, it is most likely marital. 

This presumption is overcome by a showing that the assets and liabilities are non-marital assets and liabilities.  This burden does shift the party trying to establish it as non-marital.  Once the asset or liability is established as premarital or non-marital, the burden shifts to the opposing party to establish this asset as marital.  When the marital character of an asset is in question, the burden of proving whether an asset is non-marital is on the party claiming it to be so.

The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.  Assets acquired by one spouse after filing a petition for dissolution of marriage are ordinarily deemed to be non-marital. 

The trial court may consider a party’s intentional waste or depletion of marital assets to do equity and justice between the parties.  Physical separation may not establish an earlier date for the designation of marital versus non-marital assets and liabilities.  The date for determining values of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just an equitable under the circumstances.  Different assets may be valued as of different dates, as in the judge’s discretion, the circumstances require.  Choosing a valuation date of assets in dissolution actions is determined on a case‑by‑case basis, depending upon the facts and circumstances. 

There is no presumption that one date should be used as opposed to another.  Non-marital property may become a marital asset when the non-marital assets are co-mingled with marital assets.  Non-marital property loses its non-marital character once co-mingled.  The spouse seeking to have jointly titled property declared a non-marital asset has the burden of overcoming this presumption by proving that a gift was not intended.  A non-marital asset may be altered into a marital asset to the extent that its value has been enhanced by marital funds or labor.  However, the appreciation must be attributable to active appreciation, instead of merely passive appreciation.

Kenny Leigh and Associates is a law firm that exclusively represents men in the area of family law.  That is our only focus.  

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