When Do We Decide The Issue Of What Is A Marital Asset?

Florida Statute 61.075(1) in any proceeding for dissolution of marriage, the court shall set apart to each spouse that spouse’s non-marital assets and liabilities and shall distribute between the parties the marital assets and liabilities in such proportions as are equitable. The statute goes on to define what is a marital asset and what is a non-marital asset. However, Florida Statute 61.075(1)(a) list some factors that the court can consider in making an equitable distribution award. Those factors are as follows:

(a) The contribution to a 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) An interruption of 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 the 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 non-marital assets of the parties.
(h) The desirability of retaining the marital home as a residence of any dependent child of the marriage, or any other party, when it would be equitable to do so, it is the best interest of that child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of that child and the 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 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 and other party exclusive use and possession of the marital home.
(i) Any other factors necessary to do equity and justice between the parties.

Of course, each of the aforementioned factors do not apply to every single case. Some factors are more important and others are less important depending on the facts of a particular case. It is hopeful that we can work out a negotiated settlement regarding equitable distribution. Most cases are resolved through a settlement. However, if we cannot settle and we have to litigate those issues, the trial court is mandated to make certain specific findings of fact. It will be helpful to start organizing the facts regarding what the court has to find. Those findings of facts are founds in Florida Statute 61.075(3)(1) and are as follows:

(a) Clear identification of non-marital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

I think it would be a good idea to start developing the facts of each of the assets and liabilities that we will be discussing. What is a marital asset and liability? Florida Statute 61.075(5)(a) defines marital assets and liabilities to include:

(a) Marital assets and liabilities include:

  1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them;
  2. The enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
  3. Interspousal gifts during the marriage;
  4. All vested and nonvested benefits, rights, and funds, accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs; and
  5. All real property held by the parties as tenants by the entireties. Whether acquired prior to or during the marriage; shall be presumed to be a marital asset. If in any case, a party makes a claim to the contrary the burden of proof shall be on the party asserting the claim for a special equity.

There are very challenging aspects to determine valuations and the like. Valuation is an expensive procedure that requires expert testimony of accountants, business valuation experts, appraisals, pension consultants, and the like. Hopefully we can settle the issues.

What is a nonmarital asset? Florida Statute 61.075(5)(b) defines nonmarital assets and liabilities to include:

  1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
  2. Assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
  3. All income derived from non-marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; and
  4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities.

Usually the date you determine marital assets and liabilities is the date of the filing of the petition for dissolution of marriage. However, other dates may be appropriate. Florida Statute 61.075(6) states:

The date for determining marital assets and liabilities and the value of such assets and the amount of such liabilities is the earliest of the date the parties enter into a valid separation agreement such other date as may be expressly established by such agreement or the date of filing of a petition for dissolution of marriage unless the trial judge determines another date is just and equitable under the circumstances.

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Stephen Butter