95% of divorces in Naples, Florida are settled via negotiations. The Collier County Court may help at times refine and eliminate issues via temporary orders but most final decisions regarding a divorce are done so by agreement.
If the two parties agree, the court merely needs to find that the agreement was not unconscionable or made under duress to approve it. In practice, a judge will give the marital settlement agreement a cursory examination and presume that the parties entered into it after careful, considered negotiations where each party left satisfied. In these circumstances, the assets can be distributed any way the parties wish. In my experience, men especially are typically willing to trade current assets such as a house for future assets such as a pension. While it is difficult to compare a house’s value with a pension’s value, the courts go along with those agreements and presume they are fair to both parties.
If the parties cannot agree to the distribution, the courts will divide the marital assets (those assets earned and saved during the marriage) according to the Florida statute which reads as follows:
“[T]he court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(a) The contribution to the 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) Any interruption of personal 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 a 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 nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that 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 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 any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.” Fla. Stat. Sec. 61.075
Florida courts start with premise that the distribution of assets shall be equal in value between the two parties. If either party believes that the distribution should not be equal, it is their burden to prove that the distribution should be unequal based on one of the 10 factors listed (a-j) in the statute.
Typically, the circumstances must be extreme to prevent an equal distribution of assets. It’s not enough to say, “He never kept a job” or “I made more money than she did.” Courts have to find “unique circumstances that would render a harsh result necessary to do equity and justice between the parties.” Williams v. Williams, 686 So.2d 805 at 810 (Fla. 4th DCA 1997),
There has to be something big like a non-marital gift that was made to the marriage by one party’s parents.
Then, again, the duration of the marriage ameliorates any claim for unequal distribution. Courts have found that a large pre-marital gift does not necessitate unequal distribution because the gift’s size was relatively small when looking at the length of the marriage. Franklin v. Franklin, 988 So. 2d 125 (Fla. 2d DCA 2008)
If the court does believe that an unequal distribution is warranted, the court must be extremely specific as to why it did so. “The court must provide a legally sufficient factual basis for its distribution in the final judgment.” Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996)
Even in distributing assets equally, the court is not obligated to liquidate the assets to achieve perfect parity in value. The courts can award each spouse their respective cars, houses, debts and retirement accounts in their names and account for what the surplus is that one party receives. That party will then be responsible for paying the other party a transfer payment equal to one-half of the difference in the value of the assets (less liabilities) distributed to each party. Kelley v. Kelley, 177 So. 3d 292, 293 (Fla. 4th DCA 2015)
One asset that almost never gets divided and requires a formal appraisal to determine the marital value is a business.
Dividing assets is often the biggest issue in a divorce. Contact my Naples, Florida law office so we can try to put you in the 95% of people who negotiate their divorce to their satisfaction.