Posted by Nydia Streets of Streets Law in Florida Divorce

An equalizing payment can be ordered in a Florida divorce when one spouse is awarded a higher amount of equity in marital assets than the other spouse. For example, if one spouse is awarded the marital home, the other spouse might be paid his or her one-half share of equity in the home by the spouse keeping the home. However, there are limits to equalizing payments, and this was an issue in the case Sanders v. Peterson-Sanders, 4D20-2082 (Fla. 4th DCA May 26, 2021).

A main part of the parties’ dispute in their divorce was equitable distribution. The parties’ final hearing was set for three hours in which they presented evidence of various assets and debts. The former husband contended the former wife was the primary bread-winner of the family, but at the time of trial, the former wife had been laid off and was searching for employment. At dispute was a marital home, three vehicles, retirement accounts and substantial debt. Ultimately, the trial court ordered the former husband to make an equalizing payment to the former wife of over $50,000.00. The former husband appealed.

Former husband’s first argument on appeal concerned the length of time allotted for trial. He contended three hours was not enough to present the case in full and that he was denied due process as a result. The appellate court held “Although the trial court did not provide either party with an opportunity to make closing arguments, neither party requested to present closing arguments at any point during the proceedings. Moreover, Former Husband was not foreclosed from either offering direct testimony, calling witnesses, or conducting cross-examination of Former Wife. Former Husband failed to raise a single objection to the expeditious nature of the trial and did not inform the trial court, formally or informally, that additional time was required. Thus, this issue was not properly preserved for appellate review and there is no error apparent on the face of the record.”

Next, turning to the former husband’s argument that equitable distribution was made in error, the court found no error in the trial court’s distribution of the marital home, retirement accounts and vehicles. However, it did find error in the court’s handling of debts. The appellate court held “Former Husband’s financial affidavits listed multiple liabilities from various credit card/charge accounts with the outstanding balances. The financial affidavits were admitted into evidence and Former Wife offered no argument contradicting the amounts listed. The excluded liabilities included five credit card/charge accounts, which, had they been included in the schedule of marital debts, would have reduced the total amount of the equalizing payment from Former Husband to Former Wife. Thus, remand is appropriate for the trial court to consider Former Husband’s financial affidavit evidence regarding liabilities in recalculating the equitable distribution of the parties’ assets.”

Finally, the former husband argued the trial court failed to make an express finding that he had the ability to make the $50,000+ equalizing payment without substantially endangering his economic status. The appellate court agreed with him, holding “Here, Former Husband clearly has substantial liabilities in addition to the responsibility to care for his son. Although Former Husband could make the equalizing payment out of the proceeds from the sale of the marital home, there is still an issue as to Former Husband’s financial viability following the sale of the home and the distribution of the equalizing payment that must be explicitly addressed on remand.”

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