The Basics of Equitable Distribution in Florida
Most people, when they are in the process of divorcing, tend to labor under the presumption that their marital assets will be divided equally. However, the law in most states, Florida included, does not lean toward this idea. Instead, the state espouses the common theory referred to as equitable distribution. While this does usually result in a fair split of the assets from the marriage, some say it does deny one spouse certain process rights. Understanding the idea of equitable distribution can be difficult even for lawyers, so if you do not know anything about the process, it is always best to consult a knowledgeable attorney.
Equitable distribution is the most common asset distribution system in the United States, with all but nine states (as of this writing) choosing it over the accepted alternative, which is the community property theory. The word ‘equitable’ is roughly synonymous with fair – in other words, an equitable distribution of assets is one that grants property to the one who needs it most. For example, a custodial parent may be granted the marital home so as not to uproot any children of school age, but the noncustodial parent would receive the assets they required to maintain their standard of living.
Florida’s statute governing asset distribution starts from a somewhat unique supposition as opposed to those of other states; the law explicitly holds that the distribution process must begin “with the premise that [all] should be equal” unless there is evidence to challenge that. There is almost always evidence to necessitate an equitable, rather than a strictly equal, distribution, and yet the law preserves the unlikely possibility of a 50-50 split.
Factors Taken Into Account
When some learn about equitable distribution, as opposed to equal distribution of marital assets, they will often question just whose definition of ‘fair’ will govern the distribution. The answer is that there are multiple factors that must be taken into account by the trier of fact (the judge, in most cases) in order to have a truly fair allocation of assets. The list will vary according to different states’ laws, but Florida’s is fairly common-sense and unchanging. Among others, the main factors include:
- The length of the marriage (the rationale is that the shorter the marriage, the less marital property has had a chance to accumulate; more property will likely be classed as non-marital);
- The current and future earning potential of both spouses;
- The contributions of each spouse to the marriage – which does include one spouse leaving a job or putting plans on hold to take care of children and the home;
- Any alleged waste or dissipation of assets by either spouse (dissipation is when marital assets are used or wasted with the deliberate intent of keeping the other spouse from their enjoyment);
- The contribution of each spouse to the acquisition of an asset – for example, one spouse may wish to keep a car they use primarily, and be willing to surrender other assets in order to keep the car free and clear; and
- Any other factors necessary “to do equity and justice between the parties.”
All of these issues can play significant roles in asset distribution, but it is important to remember that most courts will not reach such questions if you and your spouse are able to come to an agreement on your own. Generally, courts only intervene in asset distribution if the spouses are unable to conclude the process themselves.
Ask A Knowledgeable Attorney
In a divorce, the top two issues up for discussion are child custody and asset allocation. To ensure you get a fair shake on both, engaging an experienced legal professional can be critical. The Hollywood asset distribution attorneys at the firm of Steven A. Mason, P.A. are happy to help you work toward a settlement that is fair and equitable for all involved. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.