Distribution of Property
When a couple gets divorced in the state of Florida, their property is subject to something called equitable distribution. Equitable distribution is the process of equally dividing all marital property (property acquired during the marriage with marital funds or effort) and debt during a divorce. It is important to note that property and debt acquired during marriage is marital property regardless of whose name is on the title.
Non-marital property is all property and debt that was acquired by either spouse before marriage and is not subject to equitable distribution. Certain property acquired during the marriage can also be considered non-marital property depending on what type of property it is.
The following are common examples: property or debt that a spouse had before marriage that keeps its value after marriage; property or debt acquired in exchange for a non-marital property; property or debt acquired by inheritance or gift from someone other than that person’s spouse; income that’s earned from non-marital property as long as it isn’t used as marital property; any property and debt that the parties validly agree in writing will not be marital property (for example, a valid prenuptial agreement); any debt incurred as a result of one spouse forging the signature of the other spouse.
There are times when non-marital property can be converted to marital property. One common way is when one spouse takes property solely titled in his or her name and re-titles it in both spouses’ names. Another way is when the spouses commingle non-marital and marital property so that they are not distinguishable from each other. This commonly happens when spouses put non-marital funds into their joint checking account. In both cases, the whole property becomes marital property. A third common way non-marital property becomes marital property is when the value of a non-marital property is increased due to the efforts or monetary contributions of the other spouse. In this case, only the value of the enhancement is marital property.
During a divorce, the court determines what properties owned by the divorcing spouses is marital versus non-marital property. The court uses the date of marriage and the date of separation or filing of a petition for dissolution to determine the cutoff dates for classifying what property is marital property. All property that is determined to be non-marital property is set aside and all marital property is grouped together.
The court then determines the values of the marital property, then distributes the marital property equitably. Equitably in this sense means “fairly” as opposed to “equally.” In some instances, it might be more just to distribute the marital property unequally. There are various factors that can determine whether an unequal distribution might be better than an equal one. This analysis depends heavily on the specific facts of each case and the outcome can go in or against your favor depending on how well you argue your position.
Equitable distribution is final. Unlike child support, alimony, and time-sharing (custody), equitable distribution cannot be modified once there has been a final judgment. At Smith & Eulo Law Firm, our family attorney can make sure that your marital property is distributed in the manner that’s fairest to you.