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Wills & Probate

How does the court decide division of marital assets and marital debts?

In a dissolution of marriage, family law courts are considered courts of “equity” that base its decisions on what it determines to be “fair.” During the divorce proceedings, the court will make what is called an “equitable distribution” of marital assets and marital liabilities. In determining equitable distribution of assets and liabilities, the court will look to statutory provisions in Chapter 61, Florida Statutes as well as to how this has been interpreted by Florida courts. The statutory provisions and cases demonstrate that the court must first determine which property and which liabilities are marital and which are non-marital. In simple terms, assets or property obtained during the marriage are usually considered marital assets regardless of how these assets are titled. Similarly, debts arising during the marriage are considered marital liabilities regardless of whose debt the name is in. There are some exceptions to this general rule, such as an inheritance which is not commingled with marital assets.  In that case that inheritance may be a non-marital asset and will not be subject to division by the divorce court. In addition, the determination of marital property and liabilities may be resolved differently if the parties have a Pre-Nuptial Agreement (also known as a Pre-Marital Agreement). Once the determination is made of whether property is marital or non-marital, Florida Statutes, Chapter 61 requires the court to start with the premise that the division should be equal. However, the court may make equitable adjusts to this premise based on considerations set forth in Chapter 61. Some of these considerations include the length of the marriage, the economic circumstances of the parties and the contributions to the marriage by each spouse. Notwithstanding these statutory guidelines for distribution of marital assets and liabilities, ultimately the court has significant discretion in how to make an equitable distribution. For this reason, in contested divorce proceedings involving significant property or liabilities, a spouse should retain an experienced family law or divorce attorney to protect his or her rights in obtaining an equitable distribution.