Posted by Nydia Streets of Streets Law in Florida Divorce
In a Florida divorce, equitable distribution is determined under Florida Statute 61.075. This statute provides guidelines for the classification of marital and non-marital assets and debts, among other guidance. Equitable distribution was an issue in the case MacPherson v. MacPherson, 6D23-373 (Fla. 6th DCA May 10, 2024).
In this divorce case, two issues were discussed on appeal: (1) a necklace from the former husband’s late brother which the trial court ruled the former wife should return to the former husband and (2) a loan from the former husband’s parents which was equitably distributed even though the loan was paid off prior to the filing for divorce. The former wife appealed these issues.
The appellate court ruled on the necklace “In this case, neither party introduced any testimony or other evidence that a necklace owned by Former Husband’s brother existed or was in the possession of Former Wife. While Former Husband’s counsel referenced such a necklace in Former Husband’s written closing argument, an attorney’s argument is not evidence. Olson v. Olson, 260 So. 3d 367, 369 (Fla. 4th DCA 2018). Because there was no evidence in the record to establish the existence of the necklace, the trial court erred by requiring Former Wife to return the necklace to Former Husband. Accordingly, we reverse this portion of the final judgment.”
Regarding the loan, the appellate court held “Here, because the parties did not have a separation agreement, the cut-off date for determining assets and liabilities to be classified as marital or nonmarital was the date of the filing of the petition for dissolution of marriage. See § 61.075(7), Fla. Stat. (2018). The undisputed evidence at trial established, and the trial court found, that the loan from Former Husband’s parents was fully satisfied prior to the filing of the petition for dissolution of marriage. Because the loan was not a liability that existed as of the applicable cut-off date, the trial court erred by classifying the loan as a marital liability and distributing it.”
The court additionally noted “The trial court appears to have classified the loan from Former Husband’s parents as a marital liability because the trial court exercised its discretion to value the marital home as of the date of the parties’ separation. The loan was used to purchase the parties’ marital home and was still outstanding as of the date of the separation. Because the trial court valued the home as of the date of the separation, the trial court attempted to value the loan incurred to purchase the home as of the date of separation. However, while a trial court has discretion as to the date it uses to value marital assets and liabilities and we find no error in the trial court’s exercise of discretion as to the valuation date for the home in this case, the trial court does not have discretion as to the date used to determine the existence of martial assets and liabilities and whether they are subject to equitable distribution. § 61.075(7), Fla. Stat. (2018). If an asset or liability does not exist as of the applicable cut-off date mandated by Section 61.075(7), then the asset or liability cannot be distributed in equitable distribution.”
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