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Certain Issues in Equitable Distribution of Property

In a dissolution of marriage involving property, the trial court must determine what asset is marital versus non-marital, what is the value of each asset, and decide how to split the assets. The date of determining the existence of marital versus non-marital assets is the date of filing of the petition. Because cases can take several months or even years to conclude, an asset may exit at the date of filing but not exist, or its value may substantially decrease, by the date of trial. A perfect example is a bank account. In this situation, what is a court to do?

In a recent case in Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014), the parties owned a bank account that was significantly diminished by the Husband during the dependency of the case. At the date of filing, the bank account had $42,012; by the trial date, the account had no funds. The Husband testified that he used some of the money to pay his attorney’s fees. The trial court did not find any misconduct on the part of the Husband but nonetheless included the $42,012 in the equitable distribution scheme.

The court found error to include the bank account as an existing asset to be divided parties, holding that

“[s]ums that have been diminished during dissolution proceedings for purposes reasonably related to the marriage, such as attorney’s fees for the dissolution, should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.”

In the Ballard case, the court also considered an issue of whether equity acquired in a pre-marital house due to mortgage payments made during the marriage is a martial asset. The court answered this in the affirmative holding that

“increase in equity resulting from paying down the mortgage with marital funds constitutes a marital asset subject to equitable distribution.”

For more information see Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014). Liridona Sinani is an Attorney with Martin Law Firm, P.L. who practices Family Law and Civil Litigation. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She primarily practices in Lee County and Collier County Florida in Cape Coral, Fort Myers, and Naples.

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