Family law matters in Florida, including divorce, parenting and timesharing of minor children, division of assets, child support, and alimony, are governed by Chapter 61, Florida Statutes, along with applicable caselaw. These matters are said to be in “chancery.” This means that these are matters decided on the equity side of the court. Traditionally under common law, courts were either courts of law or courts of equity.
In Florida, family law matters, and particularly divorce cases, are determined by a judge—no jury is involved. The judge has discretion to do equity, i.e. to treat the parties equally and to do what the court determines will be “fair” in applying applicable laws to specific facts of a particular case. This principle of fairness allows a family law court some latitude in making decisions.
One of the realities of a court of equity is that matters are not always “black and white.” While this concept of equity may ultimately produce mostly fair results, it poses a challenge for parties and their attorneys in trying to predict or anticipate the outcome in a given case. Clients will often ask a lawyer what the law says about a certain topic of divorce law. While the attorney can cite statutes, cases and other sources of law which may apply, ultimately it is up to the judge to decide how the law applies to the particular facts of a given case. The judge’s role is to try to apply these statutes and caselaw in a way that results in a fair outcome.
An example might help. Tom and Maria were married for 8 years. They have no children but they did accumulate some assets during the marriage. Among those assets, there is the couple’s primary residence along with a second rental home. They also have some financial assets and a Mercedes sedan and a BMW coupe. When they file for divorce, they each ask for the primary home and both of them want the Mercedes. They ask for the other assets to be divided between them. Since these assets cannot be literally split equally, a valuation must be made on these assets and then the judge can decide who gets what based on the facts.
As a court of equity, a family law court has discretion but that does not mean unfettered discretion. The court must apply this discretion within applicable law. For example, Section 61.075 (1), Fla. Stat. provides that when it comes to dividing assets, “…the court must begin with the premise that the distribution should be equal.” In the example above, how does the judge accomplish an equal division for Tom and Maria when there are assets that cannot be divided—you can’t cut a house or a Mercedes into two pieces! This is where the equitable authority of the Court comes into play. The Court can consider all of the circumstances and can fashion a division of the assets that the Court determines is fair and in the best interests of the parties. There’s no absolute formula for making this division. It falls within the equitable jurisdiction of the Court.
In achieving equitable distribution, the objective of being equal does not mean that each party gets half of every asset. With most assets, particularly those that are not liquid, this could never be accomplished. Instead, the court can award some assets to one spouse and other assets to the other spouse. So long as they are essentially equal, the division of assets will usually be upheld in the face of legal challenge. In the example case above, Tom might get the rental house, the Mercedes and some cash. Maria could get the primary residence, the BMW, and also some cash. If the bottom line comes out essentially equal, then that is an equitable result and the Judge’s decision will not be overturned.
One of the things that happens in a contested divorce is that the parties’ attorneys present evidence trying to convince the judge what will be a fair and equitable division of the assets. This is one of the many reasons that it is important to be represented by experienced counsel in a contested divorce.
