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What is “fair and equitable” in property division?

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What is “fair and equitable” in property division?

On behalf of Law Offices of Barry I. Finkel, P.A. posted in Blog

On behalf of Law Offices of Barry I. Finkel, P.A. posted in blog on Friday, April 27, 2018.

If your marriage is in the process of breaking up and you are about to seek a Florida divorce, probably one of your greatest concerns is the manner in which the assets you and your spouse have accumulated during your marriage will be divided between you. Obviously the amount of property you receive will impact your life from now on and determine whether or not you can continue living a reasonably comfortable lifestyle.

Unlike California and certain other states, Florida is not a community property state where the law says that each spouse owns 50 percent of all marital property. Rather, Florida is an equitable division state. So, property division is to be fair and equitable.

Fair and equitable factors

As you might expect, "fair and equitable" has no precise definition. What is fair and equitable for one couple may not be for another. It seldom, however, means a 50-50 asset split between you and your spouse.

Florida judges look at a variety of factors when determining what is fair and equitable in a given situation. Such factors include the following:

  • Any gap between the incomes you and your spouse respectively earn
  • Any disparities, such as educational disparities, that exist between you and your spouse and impact the amount of income you can earn
  • Any health condition either of you has that requires a greater outlay of funds
  • Any expensive gifts either of you gave the other during the course of your marriage
  • Any substantial inheritance(s) either of you received during the course of your marriage
  • Any trust of which you or your spouse is the beneficiary

Fault versus no fault

As you probably already know, Florida is a no-fault state, meaning that you need not allege in your divorce petition that your spouse somehow caused the breakup of your marriage. Most divorce petitions contain an allegation of irreconcilable differences or similar verbiage to that effect.

In terms of property division, however, fault often comes into play. For instance, if you can prove that your spouse committed domestic abuse, adultery or some other egregious act, the judge may well take such behavior into consideration when determining your fair and equitable property settlement. 

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