To begin with, it is necessary to understand that the only process used in the state of Florida for the distribution of marital property and debs following a divorce or as now termed, dissolution of marriage, is equitable distribution. Equal distribution is utilized in only ten states with Alaska allowing a couple to choose their method of division. Florida is not a community property state where all marital assets and marital debts are divided evenly between spouses. Equitable distribution is used which denotes “fair” not “equal”division of marital assets and debts.While it is usually best when a couple can decide for themselves how to divide their marital assets and debts during mediation,(most jurisdictions in Florida require a mediation before a divorce case can be scheduled for court) a judge will do so if a marital agreement is not reached and the case must go to court. And, while it is true neither party will receive all they hoped for and a judge does his or her best to order an equitable distribution, the human element often enters in,and one or the other party finds him,or herself feeling short changed
Just what then is a marital asset or debt. Basically assets, debts, and real property obtained before marriage and in legal possession of the individual will stay non-marital after the marriage. If the other party does not have their name attached to non-marital property during the marriage those assets and debts and property will stay with the owner. And, interest or benefits derived from the non-marital property or an inheritance will remain the owner’s. Here is where a pre or postnuptial agreement comes in handy as a legally prepared, written, signed by both parties, witnessed, notarized document will often define what belongs to whom should there be a divorce and will be honored by the Florida court.
In light of the need for equitable distributed the state of Florida has mandated a list of guidelines to be used by the court when dividing up a couple’s marital property, assets, and debts. Found in Florida Statute 61.075 the guidelines can be paraphrased as follows:
(a) Either spouses’ contribution to the marriage as homemaker, and child caregiver, including homeschooling.
(b) Economic standard of the couple during their marriage
(c) Years of marriage
(d) Interruption of personal careers or educational opportunities of either spouse
(e) Contributions to better educate or develop the personal career of either spouse to the other spouse.
(f) The desire to retain an asset such as interest in a professional practice business, The desired asset (s) must be free and intact from claim or interference from the other spouse.
(g) The contribution of each spouse in monies, improvements,and vested interest as well as debts incurred during the marriage
(h) What is best for minor children in the retaining or selling of the marital home.
(i) If there is intentional waste, squandering, or destruction of marital assets within two years of filing for divorce, either before or after the filing.
(j) Any individual factors pertinent to that particular couple regarding the equitable division of their marital assets and debts.
What to do with marital assets, aside from parenting issues involving minor children, is probably the most difficult and fought over aspect of a divorce. As equitable distribution requires firm proof of need, desire, and rightful possession it is essential to retain an experienced Family Law attorney Palm Beach Garden. He or she will know how to put together the best approach to the sticky situation of equitable division of marital property, assets, and debt.
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