USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy and Carolyn Ware, Sasser, Cestero & Roy
be initiated within a certain time period or dismiss the action. After service has been completed for financial proceedings, the parties have 45 days to exchange financial documents through mandatory disclosure pursuant to Rule 12.285 of the Florida Family Law Rules of Procedure. 2.3 Division of Assets Florida approaches the division of assets with the premise that division should be equitable, which generally results in an equal division of assets, pur ‑ suant to § 61.075, Fla. Stat. The court must make specific factual findings in distributing assets. The court starts with the presumption that all assets and liabilities acquired during the marriage are marital, and therefore subject to equitable distribution, and that all assets and liabilities that existed before the marriage are non-marital, and therefore not subject to distribu ‑ tion. If a party is claiming that a pre-marital asset is marital or an asset acquired during the marriage is non-marital, the burden of proof is on that spouse to prove same. By a showing of extraordinary circumstances, the court can enter an order for partial equitable distribu ‑ tion of assets during the pendency of a case, pursuant to § 61.075 (5), Fla. Stat. This statute was recently expanded to permit an interim distribution to avoid or prevent the loss of an asset through repossession or foreclosure, the loss of housing, the default of a debt, or the levy of a tax lien, and can be for the purpose of making funds available for the payment of attorney’s fees and costs. However, this is statutorily driven and often difficult to accomplish, and the moving party must strictly comply with the procedural requirements of § 61.075, Fla. Stat., or they will be prohibited from receiving this form of relief. The court’s determination in this order is considered part of the court’s final judg ‑ ment dissolving the party’s marriage. A final judgment contains the court’s order on the equitable distribution of assets. The court can order the unequal distribution of assets. The court considers the following factors to justify an unequal distribution: • each party’s contribution to the marriage, includ ‑ ing contributing to caring for and education of the children and services as a homemaker;
• the parties’ individual and collective economic circumstances; • the duration of the marriage; • any interruptions to their careers or the educational opportunities of either party; • if there is a desirability to retain a specific asset; for example, if a party has a specific interest in retain ‑ ing their interest in a business without interference from the other party; • the parties’ contributions to the acquisition or enhancement of a marital or non-marital asset or debt; • the parties’ desire to maintain the marital home as a residence for a dependent or minor child; • if either party intentionally depleted assets after the petition for dissolution of marriage was filed or within two years of the filing; and • any other factor necessary to do justice between the parties. The basic premise of equitable distribution of assets in Florida is a three-step process: (i) identify all marital and non-marital assets; (ii) value the marital assets; and (iii) distribute the assets between the parties. The same process is used for marital debts or liabilities. Marital assets are assets that were: • acquired during the marriage by either party indi ‑ vidually or jointly; • interspousal gifts during the marriage; • the paydown of principal of a note or mortgage secured by non-marital real property and a portion of the property’s passive appreciation; • the enhancement in value of a non-marital asset due to the efforts of either party during the mar ‑ riage; • all vested and non-vested benefits or rights accrued during the marriage in the parties’ pen ‑ sions, annuities, deferred compensation plans or insurance plans; and • the marital interest in a closely held business, which must be determined by calculating the fair market value of the business, assessing enterprise and personal goodwill and a strict requirement that a non-compete cannot be the basis to determine there is no enterprise goodwill.
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