USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy, Sasser, Cestero & Roy
is considered part of the court’s final judgment 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, including contributing to caring for and education of the children and services as a homemaker; • the parties’ individual and collective econom - ic circumstances; • the duration of the marriage; • any interruptions to their careers or the edu - cational opportunities of either party; • if there is a desirability to retain a specific asset; for example, if a party has a specific interest in retaining 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 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 individually or jointly; • interspousal gifts during the marriage; • the paydown of principal of a note or mort - gage secured by non-marital real property and a portion of the property’s passive appre - ciation; • the enhancement in value of a non-marital asset due to the efforts of either party during the marriage; and • all vested and non-vested benefits or rights accrued during the marriage in the parties’ pensions, annuities, deferred compensation plans or insurance plans. • 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. Parties identify the subject assets through the discovery process. The discovery process is the exchange of financial and other documents (either formally or informally) so as to be able to properly identify and value the marital assets. In a family law case, the parties are subject to “mandatory disclosure”, pursuant to Fla. Fam. L. R. P. 12.285. Mandatory disclosure is the com - pulsory production of certain financial records by both parties to the other party. As part of a party’s mandatory disclosure, the parties are required to execute a complete Florida Family Law Financial Affidavit. However, recent chang - es to the Family Law Rules of Procedure allow for Financial Affidavits to be waived if certain requirements are met. This is a sworn affidavit wherein the parties are obligated to list all of their current assets and liabilities.
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