Equal vs. Equitable Distribution: What is the Difference?
Unlike some states that are community property states, Florida is an equitable distribution state. This means that when dividing property during a divorce, the courts are concerned with achieving a settlement that is fair to both parties. What is important to remember is that equitable distribution does not always mean that property is divided equally or in a 50/50 split.
Florida Property Division Laws
Equitable distribution rules are outlined by Florida Statute 61.075. According to this statute, the courts are required to begin property division "with the premise that the distribution should be equal, unless there is a justification for an unequal distribution." When determining whether is justification for an unequal distribution, the courts consider several factors.
Relevant factors considered during equitable distribution include:
- The length of the marriage
- Economic circumstances of each spouse
- Contributions made to marital and nonmarital assets during the marriage
- How each spouse contributed to the incurring of liabilities, such as credit card debt.
- Contributions made to the marriage by each spouse, including contributions made to the care and education of children and/or taking care of the home
- Contributions made by one spouse to further the career or education of the other
- The desirability of one spouse exclusively retaining a specific asset, such as interest in a business or professional practice
- Whether there was an interruption of the career or education of either spouse
- Whether either spouse was guilty of waste, depletion, destruction, or dissipation of marital assets
- Any other factors that have an impact on achieving equity between the two spouses
The courts will also consider whether there is any desirability in one spouse maintaining the family home for dependent children. When making this decision, the courts will consider whether it is in the child's best interest, whether it is financially feasible, and whether giving one spouse exclusive possession of the family home is in service of an equitable agreement.
How Is Equitable Distribution Achieved?
Before beginning the property division process, the divorcing couple must take an inventory of all their assets and liabilities, and marital and nonmarital property must be clearly identified. In some cases, this is fairly straightforward, but it is not uncommon for couples to also have mixed property (property that is a combination of both separate and marital property). An example of this would be a trust fund that under ordinary circumstances would be classified as individual property but which is partially funded using marital funds. Retirement accounts also often fall under the mixed property category.
After all assets have been identified, the couple, their lawyers, and the courts will work towards dividing that property in a way that is fair to both parties. When doing this, the goal is to achieve a balance in the value of assets awarded to each party. Instead of dividing every asset in half, the courts may award one larger asset to one person, while several other smaller assets are awarded to the other to achieve balance. The process is similar when it comes to dividing shared debt.
Property division is one of the most fraught aspects of divorce. It is important that you secure legal representation as soon as possible. Your attorney can represent you and your best interests during negotiations, during mediation, or in court.