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Why You Shouldn’t Spend Marital Assets Pending Divorce

How Florida Treats Marital Assets Upon Divorce

Under Florida law, the courts must perform an “equitable distribution” of marital assets in a divorce case. This means that the court will consider several factors when determining the exact method of dividing marital property between divorcing spouses.

In many cases, the “equitable” distribution of marital property might involve an even division between the parties. However, in other cases, an equal split of marital assets may not be fair under the circumstances. As a result, the court must consider all relevant details to make certain that marital property is distributed justly in light of the unique circumstances of the marriage.

In Florida, all assets that a married couple acquired is considered “marital property” that is subject to equitable distribution upon divorce. Property that does not qualify as marital property is considered as the separate “nonmarital property” of the spouse who acquired it.

Furthermore, the kind of property and assets that may be subject to equitable division upon divorce is broad, expanding beyond tangible property to include money, financial accounts, electronic funds, and intangible ownership interests in intellectual property and businesses.

The process for determining exactly how to perform an equitable distribution of the parties’ marital property can be a long, thorough process.

Under Florida Statutes § 61.075, a court is required to consider the following factors when determining issues concerning the equitable distribution of marital property:

  • “The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
  • The economic circumstances of the parties.
  • The duration of the marriage.
  • Any interruption of personal careers or educational opportunities of either party.
  • The contribution of one spouse to the personal career or educational opportunity of the other spouse.
  • 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.
  • 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.
  • 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.
  • 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.
  • Any other factors necessary to do equity and justice between the parties.”

As a result, spending assets before the court determines the precise method of distribution is very risky, especially where such assets may qualify as marital property.

For example, if you believe that your Bank of America Savings Account is your separate nonmarital property, spending its funds as you please, a subsequent finding by a court that the account and its funds are actually marital property can result in a property distribution award against your favor.

The Intentional Dissipation of Marital Assets

One of the factors that courts must consider when deciding equitable distribution issues is 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.”

Florida courts have interpreted this factor to apply exclusively to situations involving “intentional misconduct,” such as spending assets for the purpose of depriving the other party of their fair share of marital assets. However, it is not intentional misconduct if a party spends marital assets for a purpose relevant to the marriage—such as clearing marital debts.

If a court finds that a party intentionally dissipated assets for an improper purpose, it may fashion an unequal property distribution award compensating the aggrieved party for the other’s intentional misconduct.

To Learn More, Contact Bauer Law Group, P.A.

If you have questions or concerns about your legal rights regarding marital property in a divorce case, you should seek the legal advice of a licensed attorney from Bauer Law Group, P.A. Backed by years of invaluable experience; our legal team is ready to guide you through complicated legal issues arising under Florida family law.

To schedule an initial consultation with a member of our legal team, please call us at (352) 310-8169 or contact our firm online.