In a division of property and assets case captioned Roth v. Roth the parties were married for twenty-nine years. The Former Husband was seventy-four, and the Former Wife was fifty-eight. Both had high school educations, and both worked in the automotive industry. The Former Husband was in a car accident and suffered injuries. The parties filed a personal injury lawsuit and received a settlement award of $28,154.00. On the day before the Former Wife left the marital home, she withdrew $13,000.00 from the settlement funds.
The Former Wife testified that she used the portion of the settlement funds that she withdrew to pay for her attorney’s fees and to pay for her living expenses. The Husband testified that he used a portion of the settlement proceeds to pay for his living expenses and expenses related to the parties’ home.
The trial court included the settlement proceeds in its division of property and assets in this case. The Former Wife argued that the trial court erred when it included these funds in the Court’s equitable distribution because the funds did not exist at the time of the trial. The Florida Court of Appeal agreed with the Former Wife’s position, and stated that ordinarily it is a mistake for a trial court to include assets in an equitable distribution scheme that no longer exist.
In order to include assets in an equitable distribution scheme that no longer exist, a court must find that one of the parties engaged in intentional misconduct that resulted in the depletion of the assets. Unless there is evidence of misconduct by one of the parties, a trial court errs when it includes an asset that no longer exists in its equitable distribution scheme.
In the case at bar, the settlement funds did not exist at the time of the trial and there was no evidence of intentional misconduct. The parties utilized the funds for their living expenses. Without evidence that the diminution of the funds was the result of either party’s misconduct, it was error for the trial court to include these funds in its equitable distribution scheme.
Accordingly, the trial court’s judgment was reversed, and the case was remanded to the trial court.
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