Articles Posted in Equitable Distribution

In Florida, equitable distributions are presumed, as a starting point, to be equal distributions between the spouses unless special circumstances exist that warrant an unequal distribution. One of those special circumstances is a spouse’s misconduct with marital funds. Even if a spouse is guilty of misdeeds with marital funds, there are limits to what a trial court can impose. The Fourth District Court of Appeal recently threw out an equitable distribution because the trial court’s decision would have essentially made a husband pay for the income tax consequences of withdrawing money from the wife’s individual retirement account not once but twice.

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Some divorce cases go forward with both sides proceeding amicably, respectfully, and ethically. Unfortunately, this is not the case in all situations. Sometimes, a spouse may intentionally engage in wrongdoing as part of the divorce process, including improper dissipation of certain marital assets. When that happens, the law has a process for protecting the other spouse. The key in these situations is offering the right kind of proof of intentional misconduct and making sure that the trial court issues the right kind of finding. A recent case that originated in Broward County illustrated this, as the 4th District Court of Appeal threw out an equitable distribution of a couple’s assets because the court failed to make the necessary findings about the wife’s intentional misconduct.

In the divorce case of J.M. (wife) and M.M. (husband), the husband accused the wife of intentional misconduct that resulted in the dissipation of marital assets. In divorce cases, generally speaking, trial courts should not include in the equitable distribution of the couple’s assets anything that was “diminished or dissipated” during the period of time while the divorce case was pending. There is one definite situation where that is not the case, however: when one spouse commits intentional acts of misconduct that caused the diminution. When that happens, it is appropriate to include those spent assets in the misbehaving spouse’s portion of the equitable distribution.

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In Latin, there is a phrase, “de minimis,” that essentially translates to “too minor to warrant consideration” or “so small that it can be disregarded.” This phrase comes up in legal matters sometimes, when an amount is so small that the court simply declines to consider it. Of course, a sum of money that might be insignificant to someone else might be extremely important to you. In a recent Orlando case involving a a wife’s portion of her husband’s pension, the Fifth District Court of Appeal threw out a trial court’s ruling that declined to award the wife anything from that pension. While the wife’s portion may have only been a tiny fraction of the total pension, that amount was not “de minimis” to her, in the court’s opinion, especially given that, over time, that amount would total several thousand dollars.

The couple in the case, M.B. and A.C., were married for a little more than three years when the husband filed for divorce. Eleven months into their short marriage, the husband retired from his job at the Yonkers School Board of Education, where he’d worked for 31 years. After the husband initiated the divorce proceeding, the trial court in Orlando dissolved the marriage and made a ruling on equitable distribution.

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An ex-husband who failed to make payments to his ex-wife, even though he was financially able, was nevertheless able to escape being slammed with contempt of court. The 5th District Court of Appeal overturned a trial court decision that found the man in contempt, ruling that the payments were part of the equitable distribution in the couple’s divorce and that contempt cannot be used to enforce equitable distribution payments.

When J.L. (husband) and A.L. (wife) decided to divorce, the trial court divided up several assets, including the retirement benefits of the husband, who was a state employee. The trial court awarded the wife 50% of the marital portion of the husband’s state retirement. Unfortunately for everyone, however, things did not go as planned. Before the husband could retire, he suffered an injury at work. Instead of receiving retirement benefits, the husband began collecting permanent disability benefits.

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Creating an equitable distribution between divorcing spouses can often be complex. This can be especially so when one or both spouses hold nonmarital assets that are subject to mortgages and use marital assets to make the mortgage payments on those properties. In the case of one Southwest Florida couple, the 2d District Court of Appeal ruled that the wife should received an offset because, even though the husband’s property declined in value during the marriage, his equity in the asset increased as a result of paying down the mortgage using marital funds.

In this circumstance, R.S. (husband) bought a building in Queens, NY in 1998 that housed two residential apartments and a commercial space. By the time the building owner married his wife, M.S., in 2007, the value of the building stood at approximately $900,000. Shortly before the couple separated five years later, the husband sold the building for $680,000. At the couple’s divorce trial in Fort Myers, the court concluded that the building did not appreciate in value during the duration of the marriage.
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In many divorce cases, assets are often declared to be marital property unless one spouse kept an asset completely separate. However, in one recent case, the 4th District Court of Appeal declared a couple’s home in Loxahatchee to be the husband’s separate property, even though the couple used their pooled incomes to pay the property’s mortgages and expenses. The ruling stated that, since the property was worth less when the couple divorced than when they got married, the wife’s contributions did not enhance the value of the property, meaning the home remained the husband’s alone.

Years before he married his wife, Lori, William Weaver purchased a property in Loxahatchee. When the couple decided to marry, Lori Weaver sold her house and obtained a profit of $40,000. During their marriage, the Weavers paid the monthly mortgage payments, as well as all expenses on the Loxahatchee home, using their pooled incomes.
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Some spouses like to joke with their partners by reciting the well-worn humorous phrase, “What’s mine is mine and what’s yours is ours.” Florida law allows spouses to have certain assets that belong to that spouse alone. However, the law creates certain triggers that, if they occur, convert a non-marital asset into a marital one. That’s what happened to one Polk County woman, whose $78,000 in cash gifts from her mother were, according to the 2d District Court of Appeal, marital because she commingled that cash in an account that also contained marital funds.

Roberta Dravis’ mother was very generous toward her daughter. Every Christmas and birthday, the mother gave her gifts of cash. Dravis deposited these gifts in an account at CenterState Bank that she and her husband, Dean Dravis, jointly owned. By the time the couple separated, the total sum of the mother’s gifts to her daughter amounted to $78,000.
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