A seven-step analysis of equitable distribution in Florida.

• Author: Ho, Victoria M.
• Position: Marital property

Part 2: Distributing Marital Property

In part one of this article which was published in last month's (May) issue, we discussed the first four steps in the equitable distribution process under F.S. [sections] 61.075: 1) setting the date relevant to classification of assets and liabilities; 2) classifying assets and liabilities as marital or nonmarital; 3) setting dates relevant to valuing the assets and liabilities; and 4) assigning value to the marital assets and liabilities. Once the court performs these steps, it then has the pool of property which can be distributed. It is important to remember that only marital property can be distributed; the statute makes it clear that "the court shall set apart to each spouse that spouse's nonmarital assets and liabilities...."[1] Nonmarital property is outside the scope of the statute and is not subject to equitable distribution. This is why the semantics of classification are so important.

In part two of this article, we analyze the remaining three steps in the equitable distribution process: 5) distributing the marital assets and liabilities; 6) structuring the distribution award; and 7) considering the interplay between distribution and alimony. We will pay special attention to recent cases in which the courts have considered whether unequal distribution schemes were warranted under the statute.

Step 5: Structuring the Distribution

As the Florida Supreme Court stated in Robertson v. Robertson, 593 So. 2d 491, 493 (Fla. 1991), "equitable distribution is premised on the theory of an equal partnership in marriage."[2] The court is directed to start with the premise that a distribution of marital property will be equal, but the statute does recognize that there may be situations which justify awarding a greater percentage of one or all assets to one party over the other. Section 61.075(1) lists several factors that may call for an unequal division:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) 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.

(g) 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.

(h) 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.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties.

These factors are not to be taken lightly. The presumption toward equal distribution is a heavy one, and unequal distributions are the exception to the rule. In Segall v. Segall, 708 So. 2d 983 (Fla. 4th DCA 1998), the court held that there was insufficient justification for an unequal distribution where the wife had alleged the husband substantially mismanaged their money. The court quoted its earlier decision in Geddes v. Geddes, 580 So. 2d 1011, 1018 (Fla. 4th DCA 1988), where it wrote: "Those entering into a marriage partnership must share not only the benefits and successes of the relationship, but also the risk of failure and the economic consequences to the parties of such failure."

Not all of these factors will lead a court to make an uneven distribution. Some simply guide the court in terms of how to allocate specific assets. For instance, the allocation of the marital home or business to one party or the other may make sense, but this is not a justification for an unequal distribution of all of the marital property.

There are, of course, cases in which appellate courts have held that unequal distributions were justified. But those cases are consistent in that each recognizes that one--or, more often, several[3]--of the statutory factors are so significant as to overcome the general presumption, and each relies on evidence supporting the factors which is both obvious and substantial. Cases upholding unequal distributions rely on evidence which concretely establishes an extraordinary need to deviate from the 50/50 norm. A survey of recent...