Mediation Resolves The Division Of All Property (Assets & Debts).
Equitable distribution can be put as simply as: anything that is acquired during the marriage, whether it is an asset or liability is considered marital and should be equitably distributed by the Court.
The first step in the equitable distribution process is determining what is marital vs. what is non-marital. If an asset or liability was acquired during the marriage, does it automatically become marital in nature? The answer is, not necessarily. For example, an inheritance received by one party during the marriage does not automatically become marital in nature. If the receiving party, thereafter commingles their inheritance with marital property, that inheritance then can become marital property subject to equitable distribution. Once all the assets and liabilities are labeled as marital or non-marital, it is time for the Court to distribute the assets and liabilities.
Section 61.0075, Florida Statutes, sets forth the legal standards and statutory law regarding equitable distribution.
During mediation, I guide the couple through a discussion and negotiated settlement of all property owned and debts owed by the couple. The power of mediation is that the couple themselves – with my assistance – decide how best to divide-up their property and debts. This is a powerful position for each to be since they don’t have to worry about the court telling them how best to allocate their money.
Here is some general information about equitable distribution (each situation is unique and this information may not be applicable to your particular divorce).
Different Factors Regarding Equitable Distribution
If the couple were to resolve their equitable distribution issues in court before a judge, typically, the presumption is that the marital property will be divided equally, but the court may order the marital property to be divided unequally so long as the result is equitable in nature. The factors the Courts analyze in awarding equitable distribution are::
- The contribution to the marriage by each spouse (including contributions to the care and education of the children and services as homemaker;
- The economic circumstances of the parties;
- The duration of the marriage;
- Any interruption of personal careers or educational opportunities of either party;
- The contribution of one spouse or the personal career or educational opportunity of the other spouse;
- The desirability of retaining any asset, including an interest in a business or professional practice, intact and free from any claim or interference by the other party;
- 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 martial assets and the non-marital assets of the parties;
- The desirability of retaining the marital home as a residence for any dependent child of the marriage;
- The intentional dissipation, waste, depletion, or destruction of marital assets during the marriage; and
- Any other factor necessary to do equity and justice between the parties.
Despite Florida being a no-fault state, the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.
For purposes of determining alimony, there is a presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.
Remember, All Issues, Including Retirement Plans, Are Resolved In Mediation!