In Florida, the equitable distribution statute mandates that a court must equitably distribute the marital property of parties to a divorce action. This generally means that each party will get half of the marital assets regardless of fault. Furthermore, the parties to this action do not have to specifically plead or request equitable distribution of all marital assets, it is presumed. T
herefore, a trial court is required to divide marital assets and liabilities equally between spouses, unless the court makes a finding which supports an unequal distribution. While an equitable distribution presumption is the court’s starting point, Florida provides a list of factors that must be considered to determine if an unequal distribution of property is justified. Interestingly enough, the statute does not list marital fault as a factor to be considered in effecting an equitable distribution.
The factors a Florida court looks at to determine whether marital assets should be equitably distributed include:
- how much of a contribution each spouse makes to the marriage (which includes care and education of the couple’s kids or work as a homemaker);
- each party’s economic position;
- how long the marriage has lasted;
- whether the educational goals of either spouse has been interrupted;
- whether one spouse has personally contributed to the other spouse’s career or educational goals;
- whether one spouse wants to keep assets in their same form without any interference;
- each spouse’s contribution to acquiring, enhancing, and production of income, as well as the improvement of both the marital and nonmarital assets
- whether one spouse wants to keep the marital home as a residence for any dependent children;
- whether either party intentionally dissipated, wasted, depleted, or destroyed marital assets after filing for divorce or two years before filing for divorce;
- all other factors needed by the court to determine a fair and equitable distribution.
Martial fault, although unlisted within the Florida statute, may play a part in the distribution of your marital assets. It is not listed within the statute because distribution based on one spouse’s “fault” would essentially reward the innocent spouse and punish the offending spouse. According to the Florida Supreme Court, the purpose of equitable distribution is not to punish a philandering spouse overturning a trial court’s award of 97% of the marital assets to a wife whose husband committed adultery.
However, showing evidence that one spouse has cheated on the other is relevant when it demonstrates that the adulterer has depleted marital resources. For example, one spouse using the couple’s marital funds to further his or her adulterous behavior can be used against them in a court’s determination of equitable distribution. A trial court can even assign the depleted funds to the adulterous spouse as part of that spouse’s equitable distribution.
See Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994). A spouse who wishes to assert this ground must demonstrate the causal connection between the other spouse’s adulterous misconduct and the couple’s financial circumstances. This may prove to be an advantageous loophole for some!
For more information about Florida’s equitable distribution of marital assets, please consult an attorney.
