When Should Equitable Distribution Be Unequal?

Alan R. Burton Attorney at Law

Equitable Distribution of marital assets is governed by the provisions of Florida Statute 61.075(1). That section provides that, in distributing marital assets and liabilities, a 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….”

What factors then, would entitle the court to deviate from an equal distribution, and award one party more than the other?

When one spouse engages in conduct which results in the dissipation of marital assets, the court is warranted in making an unequal distribution. Hood v. Hood, Case No. 5D09-593, decided on July 30, 2010. Dissipation has been defined in the domestic relations context as “where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.”

Adultery can be considered as a factor when the court is fashioning an unequal distribution of the marital assets and liabilities of the parties, to the extent that marital misconduct depleted marital resources. As an example, the wife, in the case of Rabbath v. Farid, 1st District, Case No. 1D07-6583 had alleged in her petition that her husband had dissipated over $383,551.00 in marital funds while engaging in an extra-marital relationship.

The husband gave evasive answers and failed to adequately account for his various banking records. A combination of the husband’s evasive answers and other competent evidence presented by other witnesses justified the court in making an unequal distribution of marital assets.

Other cases make it very clear that when a party contributes and commingles substantial non- marital assets to the relationship, that factor alone is not a basis for an unequal division of marital assets. In Hitchcock v. Hitchcock, 4th District, Case Nos. 4D06-4743 & 07-1049, decided on October 22, 2008, the court made just such a finding. A presumptive gift occurs when non-marital assets are commingled with other marital assets.

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