1

A bill to be entitled

2

An act relating to marital assets; amending s. 61.075,

3

F.S.; revising provisions relating to the equitable

4

distribution of marital assets in dissolutions of

5

marriage; revising definitions; defining the term "good

6

cause"; revising the term "marital assets and

7

liabilities"; providing that the burden of proof for

8

overcoming the marital gift presumption is by clear and

9

convincing evidence; providing for an interim partial

10

distribution of marital assets; providing that claims for

11

special equity are abolished; providing an effective date.

12

13

Be It Enacted by the Legislature of the State of Florida:

14

15

     Section 1.  Section 61.075, Florida Statutes, is amended to

16

read:

17

     61.075  Equitable distribution of marital assets and

18

liabilities.--

19

     (1) As used in this section, the term:

20

     (a) "Good cause" means extraordinary circumstances that

21

require an interim partial distribution under subsection (9).

22

     (b) "Marital assets and liabilities" includes:

23

     1. Assets acquired and liabilities incurred during the

24

marriage, individually by either spouse or jointly by them.

25

     2. The enhancement in value and appreciation of nonmarital

26

assets resulting from the efforts of either party during the

27

marriage or from the contribution to or expenditure of marital

28

funds or other forms of marital assets, or both.

29

     3. Interspousal gifts during the marriage. The burden of

30

proof to overcome the marital gift presumption is by clear and

31

convincing evidence.

32

     4. All vested and nonvested benefits, rights, and funds

33

accrued during the marriage in retirement, pension, profit-

34

sharing, annuity, deferred compensation, and insurance plans and

35

programs.

36

     5. All real or personal property titled jointly by the

37

parties as tenants by the entireties, whether acquired before or

38

during the marriage. If a party makes a claim to the contrary,

39

the burden of proof is on the party asserting the claim.

40

     (c) "Nonmarital assets and liabilities" includes:

41

     1. Assets acquired and liabilities incurred by either party

42

before the marriage, and assets acquired and liabilities incurred

43

in exchange for such assets and liabilities.

44

     2. Assets acquired separately by either party by

45

noninterspousal gift, bequest, devise, or descent, and assets

46

acquired in exchange for such assets.

47

     3. All income derived from nonmarital assets during the

48

marriage unless the income was treated, used, or relied upon by

49

the parties as a marital asset.

50

     4. Assets and liabilities excluded from marital assets and

51

liabilities by valid written agreement of the parties, and assets

52

acquired and liabilities incurred in exchange for such assets and

53

liabilities.

54

     5. Any liability incurred by forgery or unauthorized

55

signature of one spouse signing the name of the other spouse.

56

Such liability is a nonmarital liability only of the party

57

committing the forgery or affixing the unauthorized signature. In

58

determining an award of attorney's fees and costs pursuant to s.

59

61.16, the court may consider the forgery or an unauthorized

60

signature by a party and may make a separate award for attorney's

61

fees and costs occasioned by the forgery or unauthorized

62

signature. This subparagraph does not apply to any forged or

63

unauthorized signature that was subsequently ratified by the

64

other spouse.

65

     (2)(1) In a proceeding for dissolution of marriage, in

66

addition to all other remedies available to a court to do equity

67

between the parties, or in a proceeding for disposition of assets

68

following a dissolution of marriage by a court that which lacked

69

jurisdiction over the absent spouse or lacked jurisdiction to

70

dispose of the assets, the court shall set apart to each spouse

71

that spouse's nonmarital assets and liabilities, and in

72

distributing the marital assets and liabilities between the

73

parties, the court shall must begin with the premise that the

74

distribution should be equal, unless there is a justification for

75

an unequal distribution based on all relevant factors, including:

76

     (a)  The contribution to the marriage by each spouse,

77

including contributions for to the care and education of the

78

children and services as homemaker.

79

     (b)  The economic circumstances of the parties.

80

     (c)  The duration of the marriage.

81

     (d) An Any interruption of personal careers or educational

82

opportunities of either party.

83

     (e)  The contribution of one spouse to the personal career

84

or educational opportunity of the other spouse.

85

     (f)  The desirability of retaining any asset, including an

86

interest in a business, corporation, or professional practice,

87

intact and free from any claim or interference by the other

88

party.

89

     (g)  The contribution of each spouse to the acquisition,

90

enhancement, and production of income or the improvement of, or

91

the incurring of liabilities to, both the marital assets and the

92

nonmarital assets of the parties.

93

     (h)  The desirability of retaining the marital home as a

94

residence for a any dependent child of the marriage, or any other

95

party, if when it is would be equitable to do so, it is in the

96

best interest of the child or that party, and it is financially

97

feasible for the parties to maintain the residence until the

98

child is emancipated or until exclusive possession is otherwise

99

terminated by a court of competent jurisdiction. In making this

100

determination, the court shall first determine if it is would be

101

in the best interest of the dependent child to remain in the

102

marital home,; and, if not, whether other equities are would be

103

served by giving any other party exclusive use and possession of

104

the marital home.

105

     (i)  The intentional dissipation, waste, depletion, or

106

destruction of marital assets after the filing of the petition or

107

within 2 years prior to the filing of the petition.

108

     (j)  Any other factors necessary to do equity and justice

109

between the parties.

110

     (2) If the court awards a cash payment for the purpose of

111

equitable distribution of marital assets, to be paid in full or

112

in installments, the full amount ordered shall vest when the

113

judgment is awarded and the award shall not terminate upon

114

remarriage or death of either party, unless otherwise agreed to

115

by the parties, but shall be treated as a debt owed from the

116

obligor or the obligor's estate to the obligee or the obligee's

117

estate, unless otherwise agreed to by the parties.

118

     (3) In a any contested dissolution action where wherein a

119

stipulation and agreement has not been entered and filed, any

120

distribution of marital assets or marital liabilities must shall

121

be supported by factual findings in the judgment or order based

122

on competent substantial evidence with reference to the factors

123

enumerated in subsection (2) (1). The distribution of all marital

124

assets and marital liabilities, whether equal or unequal, must

125

shall include specific written findings of fact as to the

126

following:

127

     (a)  Clear identification of nonmarital assets and ownership

128

interests.;

129

     (b)  Identification of marital assets, including the

130

individual valuation of significant assets, and the designation

131

of which spouse is shall be entitled to each asset.;

132

     (c) Identification of the marital liabilities and the

133

designation of which spouse is shall be responsible for each

134

liability.;

135

     (d)  Any other findings necessary to advise the parties or

136

the reviewing court of the trial court's rationale for the

137

distribution of marital assets and allocation of liabilities.

138

     (4) The judgment distributing assets is shall have the

139

effect of a duly executed instrument of conveyance, transfer,

140

release, or acquisition which is recorded in the county where the

141

property is located when the judgment, or a certified copy of the

142

judgment, is recorded in the official records of the county in

143

which the property is located.

144

     (5) As used in this section:

145

     (a) "Marital assets and liabilities" include:

146

     1. Assets acquired and liabilities incurred during the

147

marriage, individually by either spouse or jointly by them;

148

     2. The enhancement in value and appreciation of nonmarital

149

assets resulting either from the efforts of either party during

150

the marriage or from the contribution to or expenditure thereon

151

of marital funds or other forms of marital assets, or both;

152

     3. Interspousal gifts during the marriage;

153

     4. All vested and nonvested benefits, rights, and funds

154

accrued during the marriage in retirement, pension, profit-

155

sharing, annuity, deferred compensation, and insurance plans and

156

programs; and

157

     5. All real property held by the parties as tenants by the

158

entireties, whether acquired prior to or during the marriage,

159

shall be presumed to be a marital asset. If, in any case, a party

160

makes a claim to the contrary, the burden of proof shall be on

161

the party asserting the claim for a special equity.

162

     (b) "Nonmarital assets and liabilities" include:

163

     1. Assets acquired and liabilities incurred by either party

164

prior to the marriage, and assets acquired and liabilities

165

incurred in exchange for such assets and liabilities;

166

     2. Assets acquired separately by either party by

167

noninterspousal gift, bequest, devise, or descent, and assets

168

acquired in exchange for such assets;

169

     3. All income derived from nonmarital assets during the

170

marriage unless the income was treated, used, or relied upon by

171

the parties as a marital asset;

172

     4. Assets and liabilities excluded from marital assets and

173

liabilities by valid written agreement of the parties, and assets

174

acquired and liabilities incurred in exchange for such assets and

175

liabilities; and

176

     5. Any liability incurred by forgery or unauthorized

177

signature of one spouse signing the name of the other spouse. Any

178

Such liability shall be a nonmarital liability only of the party

179

having committed the forgery or having affixed the unauthorized

180

signature. In determining an award of attorney's fees and costs

181

pursuant to s. 61.16, the court may consider forgery or an

182

unauthorized signature by a party and may make a separate award

183

for attorney's fees and costs occasioned by the forgery or

184

unauthorized signature. This subparagraph does not apply to any

185

forged or unauthorized signature that was subsequently ratified

186

by the other spouse.

187

     (5)(6) The cut-off date for identifying or classifying

188

determining assets and liabilities to be identified or classified

189

as marital assets and liabilities is the earliest of the date the

190

parties enter into a valid separation agreement, a date such

191

other date as may be expressly established by such agreement, or

192

the date of the filing of a petition for dissolution of marriage,

193

whichever occurs first. The date for determining the value of

194

assets and the amount of liabilities identified or classified as

195

marital is the date or dates as the judge determines is just and

196

equitable under the circumstances. Different assets may be valued

197

on as of different dates, as, in the judge's discretion, the

198

circumstances require.

199

     (6)(7) All assets acquired and liabilities incurred by

200

either spouse subsequent to the date of the marriage and not

201

specifically established as nonmarital assets or liabilities are

202

presumed to be marital assets and liabilities. The Such

203

presumption is overcome by a showing that the assets and

204

liabilities are nonmarital assets and liabilities. The

205

presumption is only for evidentiary purposes in the dissolution

206

proceeding and does not vest title. Title to disputed assets

207

shall vest only by the judgment of a court. This section does not

208

require the joinder of spouses in the conveyance, transfer, or

209

hypothecation of a spouse's individual property; affect the laws

210

of descent and distribution; or establish community property in

211

this state.

212

     (7)(8) The court may provide for equitable distribution of

213

the marital assets and liabilities without regard to alimony for

214

either party. After the determination of an equitable

215

distribution of the marital assets and liabilities, the court

216

shall consider whether a judgment for alimony shall be made.

217

     (8)(9) To do equity between the parties, the court may, in

218

lieu of or to supplement, facilitate, or effectuate the equitable

219

division of marital assets and liabilities, order a monetary

220

payment in a lump sum or in installments to be paid over a fixed

221

period of time. If the court awards a monetary payment, the full

222

amount shall vest when the judgment is awarded and does not

223

terminate upon the remarriage or death of either party, unless

224

otherwise agreed to by the parties, and is treated as a debt owed

225

from the obligor or the obligor's estate to the obligee or the

226

obligee's estate, unless otherwise agreed to by the parties.

227

     (9) If the court finds good cause for an interim partial

228

distribution during the pendency of a dissolution action, the

229

court may enter an interim order that identifies and values the

230

marital assets and liabilities made the subject of the sworn

231

motion, that sets apart the nonmarital assets and liabilites, and

232

that provides for a partial distribution of the marital assets

233

and liabilities. An interim order may be entered at any time

234

after the date the dissolution of marriage is filed and served

235

and before the final distribution of the marital assets and

236

liabilities.

237

     (a) An interim order shall be entered only upon good cause

238

shown and upon sworn motion establishing a specific factual basis

239

for the motion. The motion may be filed by either party and shall

240

demonstrate good cause why the matter should not be deferred

241

until the final hearing.

242

     (b) An interim order partially distributing marital assets

243

and liabilities made the subject of the sworn motion must comply

244

with the provisions of this section.

245

     (c) The court shall specifically take into account and give

246

appropriate credit for, the partial distribution of marital

247

assets and liabilities in the court's final allocation of marital

248

assets and liabilities. Further, the court shall make specific

249

findings in the interim order that any partial distribution will

250

not cause inequity or prejudice to either party as to either

251

party's claims for support or attorney's fees.

252

     (10) All claims formerly identified as special equity and

253

all special equity calculations are abolished. The claim may

254

instead be asserted as a claim for unequal distribution of

255

marital assets and resolved in accordance with subsection (2), or

256

as a claim of enhancement in value and appreciation of nonmarital

257

assets pursuant to subparagraph (1)(a)2.

258

     Section 2.  This act shall take effect upon becoming a law.