Florida

JURISDICTIONAL END OF MARRIAGE DATE: Date of Petition. If there is no Petition for Dissolution Date use current date.

STATE TYPE FOR PENSION EVALUATION: Florida is an "equitable distribution" state. In a proceeding for dissolution of marriage, the court shall set apart to each spouse that spouse's non- marital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution.

[Florida Statutes Annotated: Chapters 61.075 and 61.077].

Florida Family Law Equitable Distribution

Statutory References

Fla. Stat. §§ 61.075, 61.076, 61.1301 10 U.S.C. § 1408

Case Summaries

The husband retired while the marriage was intact. A large cash settlement was received and expended before the dissolution action was filed. The husband was drawing a pension valued at $224,459 and a 401-K in the amount $226,316. The court awarded the husband the pension and the wife the 401-K as an equitable distribution. The trial court then determined that the funds received from the pension was income to the husband and for that reason he was entitled to alimony because he voluntarily retired. The retirement was an early retirement program from IBM. The Fifth District Court of Appeal reversed, holding that the pension received by the husband was treated for equitable distribution purposes and for income purposes. It could not be treated for both. Also, the husband's employability should be considered since he was 47-years old at the time of retirement with substantial educational background. Batson v. Batson, 821 So.2d 1141, 27 Fla. L. Weekly D1502 (Fla.Dist.Ct.App.5th Dist. 2002).

(Note: The footnote that discusses the husband's receipt of a monthly payment, which may never equal the projected value.)

The court is to assign a value to a pension plan for equitable distribution. Failure to do so is reversible error. Wilcox v. Wilcox, 791 So.2d 563, 26 Fla. L. Weekly D1889 (Fla. Dist. Ct. App.2d Dist. 2001).

The parties entered into a pre-nuptial agreement. The wife challenged the pre-nuptial agreement on the following basis: 1) the agreement was presented 10-days before the wedding and the wife was advised not to sign the agreement by a lawyer; 2) failure to disclose financial condition; 3) although the parties discussed the possibility of an agreement, the wife was given no time to ask sufficient questions and the agreement was presented after all the wedding and travel arrangements were made; and 4) the agreement unfairly limited the wife's share of the marital assets and was executed under duress. The wife testified that she had no choice but to sign the agreement, otherwise the husband would not marry her. This is not duress. Nor was there any testimony that the husband failed to disclose his financial condition. The agreement "neither party shall make any claim or acquire any interest in the other party's separate property if it increases in value during the marriage." The Second District Court of Appeals construed this to mean passive appreciation and the agreement does not preclude the application of Sec. 61.075(5)(a)(2) Fla. Stat. (1999), which provides that an increase in value of a non-marital asset attributable to marital labor or funds are subject to equitable distribution. The wife was entitled to one-half the enhancement of the value of the marital residence. The wife's share of the enhanced value should be one-half of the difference between the fair-market value of $110,000.00 and the purchase price of $94,400.00, which is $7,800.00. It is error to base an enhancement on the cost of repairs to the purchase price and then considering one-half of that figure as enhancement. Doig v. Doig, 787 So.2d 100, 26 Fla. L. Weekly D935 (Fla. Dist. Ct. App.2d Dist. 2001).

The parties entered into a property settlement agreement that provided the wife shall receive 50 percent of all pension benefits that have accrued from 1971 to 1991. Prior to retirement the husband enrolled in the Drop Program. The wife is entitled to one-half of the amount that was contributed towards the Drop Program because the benefits would have been paid one-half to each had the husband not elected to participate in Drop and instead retired. Ganzel v. Ganzel, 770 So.2d 304, 25 Fla. L. Weekly D2617b (Fla. Dist. Ct. App. 4th Dist. 2000).

The husband appealed contending the court did not consider income tax consequences in the evaluation of marital assets. A trial court cannot be faulted for not considering the tax consequences if counsel for the parties' neglect to present evidence on the subject. Kadanec v. Kadanec, 765 So.2de 884, 25 Fla. L. Weekly D2026a (Fla. Dist. Ct. App.2d Dist. 2000).

Phrase "and income thereon" referred to amounts accruing during marriage for purposes of parties' property settlement agreement, which was incorporated in divorce judgment and provided for wife to receive one-half of that part of husband's pension plan accruing during marriage and income thereon, and thus, distribution to wife should not have included any part of the enhancement in value during marriage which was due to passive accumulations on husband's non-marital portion of pension plan. Hargrave v. Hargrave, 728 So.2d 366, 24 Fla. L. Weekly D781 (Fla. Dist. Ct. App. 4th Dist. 1999).

Wife's pension plan, resulting from wife's employment for over 18 years during marriage, was a marital asset that should have been included in equitable distribution. Crockett v. Crockett, 708 So.2d 329 (Fla. Dist. Ct. App. 1st Dist. 1998).

Wife's frugality and thriftiness and husband's seeking divorce without attempting marriage counseling were not circumstances sufficient to warrant unequal distribution of marital asset of wife's 401(k) retirement plan, absent showing of dissipation of marital assets or other demonstrable adverse economic consequences caused by spendthrift nature of husband. Horne v. Horne, 711 So.2d 1310, 23 Fla. L. Weekly D1352 (Fla. Dist. Ct. App. 1st Dist. 1998).

Once final judgment of marital dissolution awarded each spouse interest in his or her own pension plan, those assets were no longer marital property but sole property of individual spouse, and therefore, Qualified Domestic Relations Order, (QDRO) could not be entered against former wife's pension plan to effectuate provision of judgment of dissolution requiring her to make payment to former husband spouse as equalization of property distribution. 26 U.S.C. § 414(p)(1)(B); Employee Retirement Income Security Act of 1974, § 206(d)(3)(B)(i), 29 U.S.C. § 1056(d)(3)(B)(i); Fla. Stat. § 222.21(2)(b). DeSantis v. DeSantis, 714 So.2d 637, 23 Fla. L. Weekly D1769 (Fla. Dist. Ct. App. 4th Dist. 1998).

The court is to consider nonvested benefits as well as vested benefits in retirement and pension plans. Utilizing the analysis in DeLoach v. DeLoach, 590 So.2d 956, 16 Fla. L. Weekly D2939 (Fla. Dist. Ct. App. 1st Dist. 1991)(criticized in Boyett v. Boyett, 683 So.2d 1140, (Fla. Dist. Ct. App. 1st Dist. 1996)) for the method of distribution. Vaccaro v. Vaccaro, 677 So.2d 918, 21 Fla. L. Weekly D1626 (Fla. Dist. Ct. App. 5th Dist. 1996).

The parties to this enforcement proceeding are disputing whether the wife can receive a percentage of the Voluntary Separation Program, (VSI) and of the husband's disability payments. The parties' agreement provided that the wife would receive 25 percent of the husband's retirement. The agreement contained a provision that the husband will not pursue any course of action that would defeat the wife's right to receive a portion of the full net disposable income of the husband or take any other action which would cause a limitation of the wife receiving the 25 percent agreed upon. The husband started drawing disability benefits, with the wife alleging that the husband diverted a portion of the VSI benefits into disability benefits. While the court cannot distribute as property the husband's disability, the court can enforce the parties' agreement and allocate 25 percent of those payments to the wife. Abernethy v. Abernethy, 670 So.2d 1027, 21 Fla. L. Weekly D560 (Fla. Dist. Ct. App. 5th Dist. 1996).

The Supreme Court has determined that Voluntary Separation Incentive Benefits, (VSI) are sufficiently similar to retired pay to allow enforcement of the settlement agreement. Federal Law does not preclude a state court from enforcement of a property settlement agreement that is found to encompass VSI benefits. VSI payments are the functional equivalent of the retired pay in which the wife has an interest under the settlement agreement. Kelson v. Kelson, 675 So.2d 1370, 21 Fla. L. Weekly S134 (Fla. 1996).

The wife was in the military when the husband filed for dissolution of marriage. The wife requested a voluntary separation from the Army. The Voluntary Separation Incentive Program provides benefits in the form of annual payments for 20 years. The court determined that Voluntary Separation Incentive payments, (VSI) are not retirement benefits and, therefore, are not marital property. This court rejects the Fifth District Court of Appeal's position in Abernethy v. Fishkin, 638 So.2d 160, 19 Fla. L. Weekly D1273 (Fla. Dist. Ct. App. 5th Dist. 1994); and approved its previous decision in Kelson v. Kelson, 647 So.2d 959, 19 Fla. L. Weekly D2586 (Fla. Dist. Ct. App. 1st Dist. 1994), Baer v. Baer, 657 So.2d 899, 20 Fla. L. Weekly D121 (Fla. Dist. Ct. App. 1st Dist. 1995).

The parties' marriage was dissolved and the wife was awarded a portion of the husband's pension with GMAC. After the dissolution, the wife sent a letter to the trial judge requesting a hearing, to amend the final judgment of dissolution and the Qualified Domestic Relations Order. The court entered an amended order without a notice of hearing or an opportunity to be heard by the husband which violated the husband's due process rights. The husband was forced to retire early from GMAC because of an agreement between the company and the United Autoworkers Union. The agreement provided for the payment of basic retirement benefits for life based on years of service in addition to temporary benefits paid monthly until the employee became 62 when the employee becomes eligible to receive Social Security benefits. The temporary retirement benefits cannot be treated as retirement benefits that accrued during the parties' marriage. Blevins v. Blevins, 649 So.2d 315, 20 Fla. L. Weekly D259 (Fla. Dist. Ct. App. 1st Dist. 1995), review dismissed, 654 So.2d 130 (Fla. 1995).

The award of the husband's pension to the wife based upon the employer's contribution should be reversed because there was insufficient evidence to permit a valuation of the pension. Hicks v. Hicks, 654 So.2d 654, 20 Fla. L. Weekly D1176 (Fla. Dist. Ct. App. 5th Dist. 1995).

The parties were married in 1975, separated in 1981 and the marriage was dissolved in 1992. The court should exclude from marital assets the husband's premarital component of his retirement plan. The husband's current employment also provides a retirement plan, and the court may reserve jurisdiction to defer division of the benefits pursuant to DeLoach v. DeLoach, 590 So.2d 956, 16 Fla. L. Weekly D2939 (Fla. Dist. Ct. App. 1st Dist. 1991). The DeLoach formula for deferring distribution pension rights upon an employee spouse's actual retirement consists of a fraction, with the numerator representing the length of time that pension benefits are accumulated during the marriage and the denominator representing the total length of time during which such benefits are accumulated. The court should not award the wife 100 percent of the current employment retirement benefits upon the husband's death since, as a former spouse, she is not entitled to benefits acquired after the dissolution of marriage. Livingston v. Livingston, 633 So.2d 1162, 19 Fla. L. Weekly D633 (Fla. Dist. Ct. App. 1st Dist. 1994).

The wife has an obligation to come forward with evidence concerning her own pension plan, since she was seeking division of her husband's pension plan as well as equitable distribution and permanent alimony. Thibault v. Thibault, 632 So.2d 261, 19 Fla. L. Weekly D439 (Fla. Dist. Ct. App. 1st Dist. 1994).

The parties entered into a marital settlement agreement which stated the wife would receive one-half of the husband's anticipated retirement pay from the U.S. Marine Corp. After the entry of final judgment and before the husband achieved 20 years service and eligibility for retirement, the husband elected to receive the "Voluntary Separation Incentive Program, (VSI)." VSI would be paid for a specific term of years rather than retired pay in monthly increments for life. The wife argues that this should be treated as retired pay and she should be entitled to share under the parties' agreement, and that the parties failed to anticipate the possibility of voluntary separation incentive payments in lieu of retirement benefit. The wife argued that this was a mutual mistake, as well as that the statute creating the Voluntary Separation Incentive benefits was not in existence when the agreement was drafted. Voluntary Separation Incentive benefits will not be treated as retired pay to permit the wife to obtain a percentage in accordance with the agreement. Further, because this was a property settlement provision and not support, the trial court had no jurisdiction to modify a property settlement agreement. Kelson v. Kelson, 647 So.2d 959, 19 Fla. L. Weekly D2586 (Fla. Dist. Ct. App. 1st Dist. 1994).

The parties were married 27 years. They did not enjoy a valid marriage after 1970, when they began living separately. During this time, the wife was solely responsible for raising the parties' two children. A party's contribution to the care and support of minor children is a relevant consideration in the computation of both equitable distribution and alimony. A 13 percent award of the husband's military retirement pension is insufficient. Days v. Days, 617 So.2d 417, 18 Fla. L. Weekly D1095 (Fla. Dist. Ct. App. 1st Dist. 1993).

It is error to award the wife only a minimal portion of the retirement benefits, considering the marriage was 33 years, the wife was a homemaker and cared for the parties' children. Herman v. Herman, 624 So.2d 342, 18 Fla. L. Weekly D1991 (Fla. Dist. Ct. App.3d Dist. 1993).

In order for the court to rule on pension and retirement plans, it is the responsibility of counsel to present the court with "sufficient, detailed evidence concerning such plans." The court cannot meet its burden under Fla. Stat. § 61.075 if the information is not provided. Glover v. Glover, 601 So.2d 231, 17 Fla. L. Weekly D1374, clarified, 17 Fla. L. Weekly D1774 (Fla. Dist. Ct. App. 1st Dist. 1992).

The court cannot distribute the pension without evidence of the present value or when the husband would be entitled to receive benefits. Grant v. Grant, 603 So.2d 68, 17 Fla. L. Weekly D1849 (Fla. Dist. Ct. App. 1st Dist. 1992).

Court is required to make findings. The record must contain sufficient evidence to determi ne each parties' vested and non-vested retirement benefits. Dozier v. Dozier, 606 So.2d 477, 17 Fla. L. Weekly D2392 (Fla. Dist. Ct. App. 1st Dist. 1992).

It is error not to award the passive appreciation of the husband's non-marital portion of the retirement account, even though the court allowed the husband to bring forth additional evidence and he failed to do so. Parker v. Parker, 610 So.2d 719, 18 Fla. L. Weekly D167 (Fla. Dist. Ct. App. 1st Dist. 1992).

Spouse is not automatically awarded a portion of the other spouse's pension benefits. Court needs to consider inter-related remedies to achieve an overall equitable result. Hallman v. Hallman, 575 So.2d 738, 16 Fla. L. Weekly D591 (Fla. Dist. Ct. App. 5th Dist. 1991).

It is counsel's responsibility to present sufficient, detailed evidence concerning pension plans to enable the court to accomplish an equitable distribution. Nelson v. Nelson, 588 So.2d 1049, 16 Fla. L. Weekly D2820 (Fla. Dist. Ct. App.2d Dist. 1991).

Court cannot value pension on testimony by the wife that she "believed the value of his pension is anywhere from $3,000 to $5,000." Marshall v. Marshall, 596 So.2d 675, 16 Fla. L. Weekly D2935 (Fla. Dist. Ct. App.2d Dist. 1991).

Burden of proof is on the claiming spouse that she has an interest in the pension plan and its value. Zaborowski v. Zaborowski, 547 So.2d 1296, 14 Fla. L. Weekly 2047 (Fla. Dist. Ct. App. 5th Dist. 1989).

Spouse's retirement benefits must be considered marital property based on the time the parties were married. The retirement benefits may be treated for equitable distribution or payment of alimony. De Loach v. De Loach, 552 So.2d 324, 14 Fla. L. Weekly 2692 (Fla. Dist. Ct. App. 1st Dist. 1989), appeal after remand, remanded on other grounds, 590 So.2d 956, 16 Fla. L. Weekly D2939 (Fla. Dist. Ct. App. 1st Dist. 1991).

Proof of value of husband's pension is necessary to justify distribution. Cobb v. Cobb, 538 So.2d 1370, 14 Fla. L. Weekly 569 (Fla. Dist. Ct. App.3d Dist. 1989).

Pension must be treated as a marital asset, either as a support obligation or as property subject to equitable distribution. Double-dipping would be an injustice if the husband's military retirement benefits were considered as a basis for both an award of lump sum alimony and permanent alimony. Rentz v. Rentz, 535 So.2d 613, 13 Fla. L. Weekly 2669 (Fla. Dist. Ct. App.2d Dist. 1988).

Retirement funds are marital assets only when they are acquired during the marriage. Kluessner v. Kluessner, 508 So.2d 775, 12 Fla. L. Weekly 1528 (Fla. Dist. Ct. App. 1st Dist. 1987).

Pension plan is either a marital asset for the purpose of equitable distribution of property or as support. Borntraeger v. Borntraeger, 521 So.2d 125, 12 Fla. L. Weekly 2744 (Fla. Dist. Ct. App. 1st Dist. 1987), clarified, 13 Fla. L. Weekly 591 (Fla. Dist. Ct. App. 1st Dist. 1988), review denied, 531 So.2d 1352 (Fla. 1988).

Court can consider the respective retirement plans of each party and weigh their values. Social Security benefits should also be considered as an asset. Summers v. Summers, 491 So.2d 1270, 11 Fla. L. Weekly 1676 (Fla. Dist. Ct. App.2d Dist. 1986)(superseded by statute on other grounds as stated in Hennessey v. Hennessey, 551 So.2d 597, 14 Fla. L. Weekly 2565 (Fla. Dist. Ct. App. 4th Dist. 1989)).

Retirement benefits are to be considered a marital asset for purposes of equitable distribution. Diffenderfer v. Diffenderfer, 491 So.2d 265, 11 Fla. L. Weekly 280 (Fla. 1986).

Premarital contributions to a pension plan should be excluded from equitable distribution. Reyher v. Reyher, 495 So.2d 797, 11 Fla. L. Weekly 2017 (Fla. Dist. Ct. App.2d Dist. 1986).

A pension and profit sharing plan is to be considered the same. If a final judgment refers to a pension plan, it also includes the profit sharing plan. Warnhoff v. Warnhoff, 474 So.2d 1224, 10 Fla. L. Weekly 1997 (Fla. Dist. Ct. App. 4th Dist. 1985).

This cause is on rehearing related to the Qualified Domestic Relations Order (QDRO). The final judgment entered a QDRO giving the wife $193,255.00 which was 30.22 percent of the account balance as of a specific date with such amounts to be increased by the proportionate share of any account gains, interest, dividends and other earnings and reduced by proportionate share of any account losses through the date of distribution. In another paragraph the order stated the plan administrator shall determine the total amount awarded to the alternate payee allocating to her 30.22 percent of each asset in the account as of the close of business on the day prior to the day of distribution. The husband complains that this is impermissible post-judgment interest. The wife is entitled the gains and losses that accrue on her proportion of the asset due to market fluctuation. This language is not an impermissible post-judgment interest but is merely recognition of a fluctuating asset. If assets have been added after the specific award date, the court should clarify the distribution. The wife should only have the gains and losses that accrue on her portion. Hoffman v. Hoffman, 841 So.2d 695, 28 Fla. L. Weekly D950 (Fla. Dist. Ct. App. 4th Dist. 2003).

The husband received an annual income of $76,000.00 comprising his base salary plus military voluntary separation incentive (VSI). The husband contested the inclusion of the VSI in his income for child support purposes because he received it as property distribution. The court is not to consider the same asset in calculating both property distribution and support obligations. Christ v. Christ, 854 So.2d 244, 28 Fla. L. Weekly D2106 (Fla.Dist.Ct.App. 1st Dist. 2003).

FLA. STAT. CH. 61.075

Equitable distribution of marital assets and liabilities.

(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

Page APP-33

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties.

(2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligor's estate to the obligee or the obligee's estate, unless otherwise agreed to by the parties.

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;

(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities.

(4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.

(5) As used in this section:

(a) "Marital assets and liabilities" include:

(1) Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them;

(2) The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;

Page APP-34

(3) Interspousal gifts during the marriage;

(4) All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs; and

(5) All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity.

(b) "Nonmarital assets and liabilities" include:

(1) Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;

(2) Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;

(3) All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;

(4) Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and

(5) Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney's fees and costs pursuant to ' 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney's fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.

(6) The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just Page APP-35 and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.

(7) All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are nonmarital assets and liabilities. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse's individual property; affect the laws of descent and distribution; or establish community property in this state.

(8) The court may provide for equitable distribution of the marital assets and liabilities without regard to alimony for either party. After the determination of an equitable distribution of the marital assets and liabilities, the court shall consider whether a judgment for alimony shall be made.

(9) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.

FLA. STAT. CH. 61.076

Distribution of retirement plans upon dissolution of marriage.

(1) All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.

(2) If the parties were married for at least 10 years, during which at least one of the parties who was a member of the federal uniformed services performed at least 10 years of creditable service, and if the division of marital property includes a division of uniformed services retired or retainer pay, the final judgment shall include the following:

(a) Sufficient information to identify the member of the uniformed services;

(b) Certification that the Soldiers' and Sailors' Civil Relief Act of 1940 was observed if the decree was issued while the member was on active duty and was not represented in court;

(c) A specification of the amount of retired or retainer pay to be distributed pursuant to the order, expressed in dollars or as a percentage of the disposable retired or retainer pay.

Page APP-36

(3) An order which provides for distribution of retired or retainer pay from the federal uniformed services shall not provide for payment from this source more frequently than monthly and shall not require the payor to vary normal pay and disbursement cycles for retired or retainer pay in order to comply with the order.

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