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Equitable Distribution in Dissolution of Marriage

Fla. Stat. 61.075(6)(a) defines and characterizes marital assets and liabilities which are subject to equitable distribution under Florida law.  Among the assets which are subject to equitable distribution are assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by the spouses and interspousal gifts (gifts from one spouse to the other) during the marriage.  Fla. Stat. 61.075(6)(a)(1)(a); Fla. Stat. 61.075(6)(a)(1)(c).  Additionally, all real property (land) held by the parties as tenants by the entireties, whether the property was acquired prior to or during the marriage, is 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 that the subject property, or some portion thereof, is nonmarital.  Fla. Stat. 61.075(6)(a)(2).

All personal property titled jointly by the parties as tenant by the entireties (a form of tenancy for married couples), whether acquired prior to or during the marriage, is also presumed to be a marital asset.  In the event that a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.  Fla. Stat. 61.075(6)(a)(3).  The burden of proof to overcome the gift presumption is “clear and convincing evidence.”  Fla. Stat. 61.075(6)(a)(4).  In addition to this fact, the legal principle of “special equity” has been abolished as set forth in Fla. Stat. 61.075(1)(a-j).  In order for a party to be entitled to an unequal distribution of marital property, they must now plead a claim for said relief or otherwise plead a claim of enhancement in value or appreciation of non-marital property.

If a party does not plead a claim for unequal distribution or a claim of enhancement in value or appreciation of non-marital property in their Petition for Dissolution they are not entitled to said relief.  Brayton v. Brayton. 46 So.3d 142 (Fla. 5th DCA 2010); Wallace v. Wallace. 605 So. 2d 504 (Fla. 4th DCA 1992).  In some cases, parties have requested that they receive the marital home as spousal support, but claims for spousal support or alimony are not even considered under the law until such time as a distribution of assets has been made by the Court and thus, such a request is likely inappropriate.  Acker .v Acker.  904 So.2d 384, 389 (Fla. 2005).

The commingling of marital and non-marital property creates a presumption which is similar to the ones set forth in Fla. Stat. 61.075 that a gift of one half of the jointly held property was made to the other spouse.  Archer v. Archer.  712. So.2d. 1198, 1199 (Fla. 5th DCA 1998).  Entireties property is presumed to be marital, regardless of the date of acquisition.  Cattaneo v. Cattaneo.  803 So.2d. 889, 890 (Fla. 5th DCA 2002).  A party’s conduct evidencing joint ownership cannot be overcome by an unsubstantiated claim, raised for the first time during a dissolution proceeding, that the party never intended a gift to the spouse at the time of conveyance.   Id.

If you have questions about the nature of property related to a potential dissolution of marriage, please contact The Hogan Law Firm. A variety of factors and actions taken in your initial filing of an action for dissolution of marriage, many of which are not be listed herein, have a profound effect on the nature of your rights under the law.