Equitable distribution – Marital v. Nonmarital



So. 3d (Fla. 2d DCA 2021) 46 FLW D473 (3/3/2021)

The personal injury award received during the marriage as a result of the husband’s accident was improperly classified as the husband’s non-marital asset where neither party presented any evidence showing the components that made up the award pursuant to the weisfeld case. Since any asset acquired by either party during the marriage is presumed to be marital and the presumption is overcome only by a showing that the assets are nonmarital, the personal injury award was marital.

Weisfeld v. Weisfeld, 545 so. 2d 1341 (fla. 1989) adopts the analytical approach of classifying a personal injury action settlement as marital or nonmarital. Marital property subject to distribution includes: lost wages or lost earning capacity during the marriage and medical expenses paid out of marital funds during the marriage. The nonmarital property belonging to the injured spouse includes the portion of the damage award for pain and suffering. Any personal injury funds for which no allocation can be made are classified as marital.

Also, since both parties used the funds during the separation and dissolution proceedings and there was no finding by the trial court as to either party’s intentional misconduct, it was an abuse of discretion to include the dissipated funds in the equitable distribution scheme.

The parties testified that they spent the personal injury funds on living expenses. The husband testified that he spent a portion of the funds covering expenses related to the marital home. The wife testified that she used some of the funds to pay for litigation expenses.




So. 3d (Fla. 2d DCA 2021) 46 FLW D473 (3/3/2021)

It was error to decline to award alimony to the wife in this 17 year marriage without making a finding regarding need and ability to pay alimony. This finding is required even where the court makes detailed findings in accordance with the factors of § 61.08(2) (a)-(g).





So. 3d (Fla. 1st DCA 2021) 46 FLW D498 (3/4/2021)

An s corporation’s undistributed pass through income that is not distributed as income to the shareholder and is retained by the s corporation for corporate purposes and not for the purpose of avoiding alimony, child support, or attorney’s fees obligations does not constitute income to the shareholder spouse. Zold v. Zold , 911so. 2d 1222 (fla. 2005)

The shareholder spouse has the burden to prove that the income was retained for corporate purposes.

Where the husband paid corporate liabilities with the pass-through income, it was improper to include the amount used to pay the liabilities as part of the husband’s income when determining his ability to pay support.