DIVORCE: IS EVERYTHING SPLIT 50/50?
BY JOEL H. FELDMAN

People often think that everything a married couple owns is split on a 50/50 basis when they get divorced. This is not true, and careful examination must be made to determine if one party is entitled to a greater share of the assets or should be responsible for a greater share of the debts.

Florida is not a "community property" state in which everything is divided on an equal basis. Florida is an "equitable distribution" state, meaning that each asset and debt must be reviewed to determine when it was acquired, why it was acquired and what sources of money were used.

Assets and liabilities incurred during the marriage typically are divided on a 50/50 basis. It generally does not matter how the assets are titled. Even if an asset is titled to just one spouse, if it was purchased during the marriage, there is a legal presumption that the asset (or the value of the asset) is to be divided equally. Assets and liabilities incurred prior to the marriage typically belong to the one who purchased the asset or took on the debt. However, there are exceptions.

If an asset was acquired prior to marriage and is titled to only one spouse, but funds were used after the marriage to enhance the value of the asset or reduce debt against the asset, the spouse without title may have a claim for "special equity." The asset does not go only to the spouse who owned the asset prior to marriage; its enhanced value must be examined to determine how marital money may have increased the value or reduced the debt. For example, if upon marriage, one party moves into the house of the other, who owned the house before the marriage, the spouse who moved in may be entitled to a special equity based upon the use of his or her own money or the use of marital funds to renovate the house or reduce the mortgage balance against the house. Instead of awarding the house to the spouse who purchased it, leaving the other spouse without any share of the value, and instead of splitting the value of the house equally, a formula is applied to determine the value of the contributions in relation to the value of the house. The division between the parties will not be 100/0 or 50/50, but a prorated division.

Retirement funds are another example. If a spouse had an individual retirement account (IRA) or retirement saving plan at the time of marriage, and more money is put into that account or plan, the money does not go only to the party in whose name the account or plan is titled, nor is it divided 50/50. An analysis must be made of the growth of those funds contributed prior to marriage versus the growth of those funds contributed after the marriage. The resulting division, again, will not be 100/0 or 50/50, but a prorated division.

Other factors can create situations in which an asset or liability is not divided on a 50/50 basis. An inheritance received by one party during the marriage is not subject to equal division. It remains exclusively the asset of the inheriting spouse, unless the inheriting spouse commingles the inheritance with other marital funds. In that event, the commingling may result in a 50/50 division.

There are other circumstances in which assets or liabilities may be divided on other than a 50/50 basis, such as creation of debts for nonmarital purposes or when marital funds are wasted for nonmarital purposes. An experienced family law attorney should be consulted to gain a more complete analysis of the division of assets and liabilities.

JOEL H. FELDMAN is a partner in the law firm of FELDMAN & SCHNEIDERMAN, P.L., 401 Camino Gardens Boulevard, Boca Raton, Florida 33432 (www.feldmanlawoffice.com). His practice is almost exclusively in the area of divorce and matrimonial law. He is a graduate of Georgetown University and Duke University School of Law. He is rated "A V" by the Martindale-Hubbell Law Directory and is rated "Preeminent" in the field of Family Law. He has received numerous awards for his charitable work in the community and multiple awards from the Palm Beach County Legal Aid Society. He can be reached at 561-392-4400 or at jfeldman@feldmanlawoffice.com. 

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