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Equitable Distribution in Florida Dissolution of Marriage
The distribution of property in a divorce in Florida is covered by Chapter 61 of the Florida Statutes. Rather than a community property state, such as California, Florida has adopted what is known as Equitable Distribution. Under the Equitable Distribution scheme, marital property is fairly divided between the parties.
Marital property includes such things as, by way of example, assets acquired jointly by the spouses during the marriage, the enhancement of value of a non-marital asset during the marriage due to the efforts of the other spouse, jointly titled personal property, a home titled as tenants by the entirety, a gift during the marriage from one spouse to another, and a joint bank account.
A court will first award to each party their own non-marital property, such as property they had and retained prior to the marriage, and which did not become marital property. Non-marital property, however, can become marital property, such as when one party brings a home into the marriage and places the other party on the title to the home. A bank account owned prior to the marriage and maintained by only one party during the marriage, and not used for purposes related to the marriage or the other spouse, would likely retain its separate, non-marital classification.
Once a court has determined what is non-marital, or a spouse's separate property, the court will then determine how to distribute the marital property. The court will look to the factors contained in the Florida Statutes, which are:
An award by a judge of property to one spouse must be based upon "competent and substantial evidence" of the spouse's right to that property, as presented by the lawyer for that spouse. The judge must clearly spell out his or her reasons for awarding the property to either spouse.
Like the distribution of assets, the court will also need to equitably distribute the marital debts of the parties. Marital debts include debts incurred during the marriage, or debts which were incurred by one spouse prior to the marriage but which were somehow ratified or adopted by the other spouse during the marriage.
After the equitable distribution of assets, a court will then consider issues such as alimony. Note, however, that when children are involved the issues concerning the children, such as custody and decision making (parenting), and child support, will always take priority over the distribution of assets and debts. Further, when there is a marital home involved, the children will be taken into account when determining who is to be awarded the home and with whom the child will spend the majority of its time, if not equally with both parents.
In an amicable divorce, the parties should try to come to agreement on who is to be the owner of the assets and liabilities of the marriage. This is achieved through a Marital Settlement Agreement (MSA). The Marital Settlement Agreement is an Agreement that acts as road map for how the divorce will be settled. It lays out which debts of the marriage will be borne by each party and to what assets each party is entitled. The MSA also determines issues such as parenting (custody and decision making), and the arrangements for a sale, if necessary, of certain properties such as the marital home.
As can be expected, much litigation occurs over the distribution of assets in a dissolution of marriage in Florida. Often, to facilitate agreement over the distribution of assets, the parties will attend a mediation, whereby an independent third party ñ often a lawyer ñ will hear the arguments of both parties and work to achieve a reasonable agreement between them which can then form the basis for a Marital Settlement Agreement that can be filed in court.
When the Florida court decides on the issue of child custody and visitation, the gender of the parents is not considered. For example, a mother will not automatically receive custody of the children just because she is the mother. The judge must only consider what is in the best interests of the child. Florida divorce law requires Shared Parental Responsibility. This means that even though the child may live with one parent, the other parent has equal say in raising the child. Each party must be consulted on the education, health, religion, and discipline of the child. And, if the parties cannot agree on these important issues, the judge will make the decisions.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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