Equitable Distribution of Marital Assets and Liabilities

Marital Assets and Liabilities Part 2 of 15 | Divorce Attorney Fort Myers/Naples

• Marital assets and liabilities includes:

• Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
• The enhancement in value and appreciation of nonmarital 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.
• Interspousal gifts during the marriage.
  1. An interspousal gift is established by showing donative intent, delivery or possession of the gift, and surrender of dominion and control of the gift
     1. The question of donative intent is one of a preponderance of the credible evidence.
     2. With regard to surrender of dominion and control of the property, the Wife had unfettered access to the home and made decisions on care and maintenance of the property with the ability to incur expenses on behalf of the Husband.
  2. The burden is on the party seeking to prove an interest in the property to show it was an interspousal gift.
• 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.
• Unused sick and vacation days. The district court held that since the husband’s employment contract provided for the method of valuing his unused hours, the value of the unused sick and vacation days were subject to equitable distribution. However, if the unused sick and vacation day valuation was speculative in nature, the court would not have required equitable distribution. Dye v. Dye, 17 So.3d 34 (Fla. 2d DCA 2009)
• Student Loan Debt. Marital liability if incurred during the marriage. Rogers v. Rogers¸ 12 So.3d 388 (Fla. 2d DCA 2009)
• 61.075(8) Presumption. All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are non-marital assets and liabilities.
• Date of Valuation. the court has discretion to determine a date that is “just and equitable” for valuation purposes. § 61.075(7). Different assets may be valued as of different dates as the circumstances require.
  • Since the final judgment did not list the time of filing as the valuation date, the district court was forced to depend upon the trial date as the date of valuation. Therefore, the debt that was accrued after the parties’ separation was subject to equitable distribution. Massam v. Massam, 993 So.2d 1002 (Fla. 2d DCA 2008)
• Burden of Proving Non-Marital. When the marital character of an asset is in question, the burden of proving whether an asset is non-marital is on the party claiming it to be so. Alpha v. Alpha, 885 So.2d 1023 (Fla. 5th DCA 2004).
• Intentional Waste or Depletion. The trial court may consider a party’s intentional waste or depletion of marital assets to do equity and justice between the parties. Santiago v. Santiago, 51 So.3d 637, 638 (Fla. 2d DCA 2011).

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