Appealing Equitable Distribution of Assets In Divorce


By Florida Family Law Appeals Attorney Eduardo J. Mejias

Practicing Exclusively Family Law Since 2005

AAA Family Law Can Represent You In Family Law Appeals Anywhere In Florida


The Three Steps of Equitable Distribution of Assets

Asset (property) acquired by a divorcing couple since their marriage are known in Florida family law as “acquired assets”.  If a divorcing couple owns acquired assets, the trial court performs this three-step analysis to determine how they are distributed equitably: (a) identifying the assets as either marital or non-marital, (b) assigning a value to each marital asset, and (c) equitably distributing those marital assets. For more information on this subject see Property Distribution In Divorce.

With a few exceptions, “equitable” means that the trial court will distribute the marital assets and liabilities equally between the divorcing spouses. However, before it can do that, the trial court must identify and value them. A trial court can open the door for an appeal with either (a) a mistaken categorization of an asset as marital or non-marital or (b) or an erroneous valuation of the marital asset or property.

Identifying Marital Assets

Trial courts usually identify marital assets quite easily because they are governed by a simple rule: The total of assets (net of debts) are deemed marital if acquired between (a) the date of the marriage and (b) the date of (1) the initial filing of the petition for divorce, or (2) the entry in to a valid separation agreement (which is rare). In the vast majority of divorce trials, the family law judge merely has to determine what assets the couple acquired from the wedding date to the date of the initial filing.

As you might expect, there exists a few exceptions even to this rule (such as, for inheritances and portions of litigation awards), but for the most part, the trial court simply looks at the two critical dates mentioned above to identify which assets are marital

Because this task is a clearly defined standard, using objective factors and leaving little or no room for varying interpretations it is called a bright-line legal rule. For these kinds of rules appellate courts review errors in the identification of marital assets with a de novo standard, meaning “starting from scratch”. Therefore,  the appellate court gives no deference to the trial court decisions.

Valuing Marital Assets

On the other hand, trial courts enjoy much more discretion in their valuation of marital assets. In fact, the controlling law, Section 61.075(7), Florida Statutes allows a trial court to choose the valuation date of a marital asset as whatever it deems “just and equitable under the circumstances”.

 In practice, the trial court may determine that a marital asset should be valued at the time that the parties separated, the date of the initial filing, or even the date of the trial. While there are no bright-line rules, appellate courts have ruled that when an asset has passively appreciated (as in a marital home) it should be valued at the date of the trial.

Conversely, if a spouse has actively added to the value of a marital asset since the separation or filing, (for example, contributing to a 401K) then he or she should be rewarded for that by keeping all of the increased value, and valuing that asset at the time of the separation or filing.

Because the valuation of marital assets is much more complex and factually-based, appellate courts grant the trial court more leeway with this issue. Appellate courts will only reverse a valuation of assets if it lacks substantial, competent supporting evidence. 

How We Can Be of Service

If you have any questions about appealing a distribution assets in a divorce, I encourage you to call me, Eduardo Mejias, AAA Family Law at 407-260-6001 and schedule an initial consultation. 

At the consultation I will: (a) listen to your explanation of what part of your cases you are considering appealing, (b) evaluate the likelihood that the appeal will succeed and recommend a course of action and (c) quote you a fixed retainer fee before you sign any papers or make any payments, not an hourly rate whose total would be unpredictable. 

Our retainer fees for family law appeals of final orders in Florida range between $3,000 and $5,000 depending on their level of complexity.  For non-final orders they are between $2,000 and $4,000.   See Family Lawyer Retainer Fees for more information.