Equitable Distribution Lawyer in Fort Lauderdale
Is Florida an Equitable Distribution State?
Most states, including Florida, follow equitable distribution laws, found in Section 61.075, Florida Statutes. Under these laws, any property or asset acquired during the marriage belongs to the spouse who earned it. In the case of a divorce, the property or asset and debt will be divided between the spouses in a fair and equitable manner. It is important to know that this does not mean an equal division of the assets and debts. The court may intervene and use its discretion to determine what is fair and equitable for purposes of the property division. The courts, however, are provided with some guidance through Florida's Equitable Distribution statute, Section 61.075, Florida Statutes. Florida courts consider several factors when dividing property, including:
- each spouse's income and earning potential;
- the length of the marriage;
- the number of minor children in home;
- whether one spouse made career sacrifices for the other spouse's education or job;
- each spouse's debts and assets;
- each spouse's overall physical and mental health, and
- any other relevant factors.
After considering the above factors, and if the parties are unable to settle their property issues in mediation, a court will make a property determination that meets the needs of both spouses and serves the best interests of the children, if any.
Are You Required to Divide the Assets You Acquired Before Marriage During Divorce?
You may have separate nonmarital property or assets and debts that you believe should not be subject to division within your divorce. Property is considered separate if one spouse owned the asset before the marriage or acquired it during the marriage as a gift (not including gifts from the other spouse) or an inheritance within certain exceptions. Separate property may include:
- assets and debts parties define as separate property in a valid written agreement (a pre-marital agreement or post-marital agreement);
- income from separate property, unless the spouses have treated the income as marital property, by “commingling” it and
- items exchanged for or purchased with separate property by each of the spouses.
Parties can reach agreements about dividing property either on their own or with the help of a mediator. Courts generally uphold such agreements as long as they are in writing and each spouse has had an opportunity to consult with an independent attorney. If a party cannot reach an agreement, a judge will usually decide the equitable distribution of the asset or debt.