The Factors
Equitable Distribution is premised on the starting point that equal is equitable. (See prior post, “How Is Property Divided In A Florida Divorce?”) In other words, Florida statutes specifically instruct the trial courts to begin analyzing equitable distribution with “with the premise that the distribution should be equal”; however, that same statute permits the courts to provide for an unequal distribution of assets and liabilities based upon certain enumerated factors:
- The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker;
- The economic circumstances of the parties;
- The duration of the marriage;
- Any interruption of personal careers or educational opportunities of either party;
- The contribution of one spouse to the personal career or educational opportunity of the other spouse;
- The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party;
- The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties;
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home;
- The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition;
- Any other factors necessary to do equity and justice between the parties.
These factors seem to encompass practically any circumstance, especially when the final catch-all factor is thrown into the mix. Fortunately, The Florida Bar Journal recently published a helpful article which discusses this subject in great detail, with an interesting report on the history of the law leading to where we are now, “Is An Unequal Equitable Distribution Equitable?” While there are plenty of circumstances in which an unequal distribution may be appropriate, it remains the exclusion to the rule of equal distribution. It must be emphasized that the circumstances leading to an unequal distribution are incredibly fact-specific and no one scenario is “guaranteed” to result in an unequal distribution.
Equitable Distribution and Spousal Support Are Different Pieces of the Divorce Pie
Many of the equitable distribution factors overlap with the factors that go into a determination of alimony. Alimony is based on one spouse’s need and the other spouse’s ability to pay, after which various factors are analyzed to figure out what kind of alimony is appropriate, what amount, and for how long. Unlike in the alimony context, the courts are instructed by the law to begin with the premise that equitable distribution of the marital assets and liabilities should be equal. This means that if you are seeking an unequal distribution of assets or liabilities, you will have to overcome with mandated starting point and presumption against an unequal distribution. While only certain kinds of alimony are available for marriages of a certain length, there is no presumption against alimony as a concept in the statutes; instead, it is a mathematical determination of needs and ability to pay.
Furthermore, if you are seeking alimony and an unequal distribution, understand that they exist within the same context, meaning if you are successful in your alimony claim, you are less likely to succeed in your request for unequal distribution, just as if you are successful in your request for an unequal distribution, you are less likely to receive alimony or there is a good chance you will be awarded less alimony. It would be rare, but not unheard of, to receive alimony and an unequal distribution, particularly if they are both based on the same or similar factors. But it cannot be emphasized enough that each case is unique, as are its circumstances. A particularly compelling case for unequal distribution may also be similarly compelling in the alimony context.
Evidentiary Standard: It’s Not Enough to Merely Make a Claim
When making a final decision regarding equitable distribution, Florida statutes instruct the court as follows: “any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated [above].” This means that the court must make written findings of fact in the final judgment and those findings of fact must be based on competent substantial evidence which relate directly to the equitable distribution factors listed above. Thus, any equitable distribution decision, including one that is unequal, must be based on competent substantial evidence. This means more than just a claim that something happened. There must be actual, admissible evidence presented to the trial court to justify a decision. Failure of the trial court to include these findings of fact in the final judgment is reversible error on its face.
Equitable distribution starts off on a pretty straightforward presumption that everything will be split equally when all is said and done. While the process of identifying and valuing all marital assets and liabilities can be an arduous one, it is typically somewhat predictable, especially to seasoned family law attorneys. However, the strength of a claim for unequal distribution is much more complicated than simply reading the relevant statutes and factors. Only an attorney who understands the plethora of case law discussing various scenarios over the decades in Florida, like at Artemis Family Law Group, can accurately gauge whether a claim for unequal distribution should be attempted or if legal efforts and fees should be directed toward a different direction that has a better chance of success. When you are ready to discuss your options, please schedule a consultation with our office today.