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Equitable Distribution in Divorce: Florida Family Courts Aim to Play Fair, Even When Estranged Spouses Do Not

asset division in divorce lawyer Sean Smallwood

With very few exceptions, everyone loses financially in a divorce.  Women who enrich themselves by marrying and divorcing rich men in succession are largely a fiction that exists only in tall tales exchanged at poker night gatherings.  Almost all your divorced friends were poorer after their divorce than before, as they have probably told you at great length, but what they might not tell you is that their former spouses also came out of the divorce poorer.  Starting a new life after a failed marriage costs money, and Florida family courts aim to divide couples’ assets in such a way as to keep each person’s standard of living after the divorce similar to what it was during the marriage.  This is the basis of Florida’s equitable distribution doctrine, in which courts consider all relevant information available to them when determining which assets to award to which spouse.  If you think that the court is failing to see your side of the story, contact an Orlando, FL divorce lawyer.


How Equitable Distribution Works


When a couple divorces, the court must decide which assets belong to the couple and which belong to just one spouse; the court then divides the jointly owned assets (known as “marital property”) between the two spouses.  Florida courts almost always count all property obtained during the marriage as marital property, even if, on paper, it appeared to belong to only one spouse.  For example, if the couple has two bank accounts at the time they file for divorce, both of which they opened after they got married, but one account is in the husband’s name and the other is in the wife’s name, the court will count both of them as marital property.

Remember that “equitable” is a closer synonym for “fair” than it is for “equal.”  If the two spouses had similar incomes during the marriage, and they both worked the entire time they were married, the court might award them equal shares, especially if part of the divorce agreement involves selling the house they owned together.  Of course, while all marriages are economic partnerships in some regard, in many marriages, one spouse earns less money than the other while contributing to the economic well-being of the family in ways other than depositing currency in a bank account.  On that basis, Section 61.075(1), the section of Florida law that outlines equitable distribution, asks courts to consider the following factors when determining how much money to award to each spouse:


  • The length of the marriage
  • The income-earning potential of each spouse, based on each spouse’s age, health, and work history, as well as each spouse’s current income
  • Other factors that would limit one spouse’s ability to work, such as responsibilities like caring for young children or elderly parents
  • How much each spouse contributed to the other spouse’s current income or financial situation, such as by using pre-marital assets to pay for the spouse’s education during the marriage

Based on the above criteria, many details of the parties’ lives before and during the marriage are related to decisions about equitable distribution.  These criteria are similar to the ones courts use to determine the amount and duration of alimonyFlorida divorce property division of assets at the time of the divorce and spousal support paid out over a long period are two ways of reaching the same goal, ensuring that the more financially vulnerable spouse is not left high and dry when it comes to their economic situation.


If Your Spouse Is a Deadbeat


Conflicts over money are a major factor in many divorces.  If your spouse squandered money or refused to work for long periods during the marriage, despite the need for income and despite your spouse’s ability to work, you may be able to increase the share of marital assets awarded to you by convincing the court of these facts.  In the context of equitable distribution, “misconduct” means that your spouse used marital property to sabotage the marriage, for example, by financially supporting a romantic partner with whom your spouse was having an extramarital affair.  Courts sometimes take misconduct into account and award more money to the spouse who was the victim of misconduct, but the burden of proof is on you if you allege your spouse engaged in misconduct.


Contact Sean Smallwood, P.A. About Divorce Cases


If you and your spouse cannot agree about how to divide your assets in a divorce, a family lawyer knowledgeable about equitable distribution can help.  Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation.


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