If you are anticipating a divorce, or if you or a spouse has already filed, you might automatically assume you get 50 percent of all marital assets, including your home, properties, vehicles, financial investments, or cash. However, this isn’t necessarily true…
In this article, we will explain what equitable distribution is, how it is calculated in Florida, and what you need to know.
What Is Equitable Distribution?
Equitable distribution refers to any assets that were acquired or incurred during the marriage. These assets are considered to be “marital”, and any asset (or liability) that is marital can be distributed during a divorce. This could be a property purchase, business debt, or credit card debt.
For example, if you have a car or a house that is considered “marital”, then this can be distributed through the divorce. Similarly, credit card debt or business debt are also distributed through a divorce.
Marital Assets vs. Non-Marital Assets
The starting point for dividing any marital assets is 50/50. For example, if during the marriage, a husband purchases a vehicle with money earned from his full-time job, and the vehicle title (or loan) is in his name and he’s the only one driving the vehicle, it is still considered a marital asset. Therefore, the wife is still entitled to 50% of the value of the car. So, title doesn’t matter.
On the other hand, if there is an open loan on the vehicle, even if it is in the husband’s name only, the wife is also responsible for 50% of the vehicle loan.
Another example is if a husband and wife have a marital home and minor children, and there is a legitimate reason to keep the children in the marital home for a period of time, the judge may grant the wife permission to remain in the home. The wife isn’t always granted this in every single case, however, it is more often than not. Once the children reach the age of 18 and move out of the home, then the property can be divided.
Let’s say a couple purchases a home before they get married. Later, they get married and the title to the property is in both their names. At this point, the home and property a marital asset.
If the property title remains in one spouse’s name, then this creates an interesting situation that involves the value of the asset. If home improvements are made, for example, this is then referred to as “marital effort”. The property itself will remain non-marital, but the enhancement in value during the marriage becomes marital. This further complicates the situation as to what portion is marital and under what circumstances. In these cases, any enhancement in value during the marriage would be marital and your spouse will be entitled to 50 percent.
There are also situations that involve passive depreciation 0f a home. If a husband and/or wife each pay down the mortgage with marital funds during the marriage, then this also becomes “marital”.
Another common non-marital asset is an inheritance. For example, let’s say the wife inherits some money from her Aunt Betty. She keeps that money in a separate account in her name only, she doesn’t mix this with any joint accounts, and she doesn’t rely on it for any marital expenditures. In this case, the wife would have a fairly strong argument that her inheritance maintained its non-marital character.
However, if the wife puts the money from Aunt Betty into a joint checking account with her husband, then it loses its non-marital character completely and becomes marital.
If you inherit personal property items, these are easier to keep separate and maintain their non-marital characters.
Equitable Distribution Isn’t Always 50/50
One common mistake people make before getting a divorce is going in with the expectation that equitable distribution is purely 50/50.
The truth is that there is actually a number of statutory criteria that go into the equitable distribution formulation. Although the premise is that things are all 50/50, it’s important to remember that things may move around, especially if the case involves alimony. As a result, equitable distribution may end up become offset by maybe some of those alimony issues.
50/50 is Only a Starting Point…
Anything that is incurred during a marriage—whether assets or debts—the starting point is 50/50. Now you can deviate from that starting point. There are some factors that the court can consider, such as the length of the marriage, the economic circumstances of the parties, the contribution to the marriage by each spouse, and other factors. A judge needs a pretty good reason to not divide the marital asset or debt 50/50.
In reality, whenever the judge deviates from the 50/50, he or she is taking a risk that the decision will be overturned on appeal, and that’s the worst thing for a trial court judge to deal with. In most cases, a judge will divide any asset or liability 50/50 to stay on the safe side.
How Is Equitable Distribution Calculated in Florida?
There is a number of criteria that determine whether an asset is classified as marital or non-marital. As we explained above, generally, a “marital asset” is an asset or debt that is acquired during the length of the marriage. Of course, there are always exceptions, but this is the best way to look at it.
Some of the other criteria that a judge may use to calculate equitable distribution include:
Cut-off Date: This is the date in which you actually file for divorce. This date is important because any assets or debts acquired after this date automatically becomes a non-marital asset.
For example, if you filed for divorce, then bought a new car a month later, the vehicle is a non-marital asset.
Valuation Date: If an asset or debt is marital, what is the date that will be used to value that asset? The judge can actually use different valuation dates for different assets.
For example, if you go to trial, the judge can use the date of filing as the valuation date or the date of trial, or any other date that the judge feels is appropriate under the circumstances.
How to Secure Your Portion
All in all, your divorce can be as smooth as possible by working with a qualified, professional, and experienced divorce attorney. Contact Travis Walker Law today for a consultation.