Part of dissolving a marriage is distributing marital property and debts between the spouses. If you and your spouse aren’t able to reach an agreement on how to divide your property, the judge will decide what is fair based on a variety of factors.
Florida law requires that the division of marital property must be “equitable.” Equitable does not always mean equal, but the law requires the judge to begin with the assumption that the division should be equal. The judge can divide the property unequally only if it is justified after an examination of these factors, set out in the Florida statues:
- Each spouse’s contribution to the marriage, including contributions as the homemaker or the primary caretaker for children.
- The economic circumstance of the spouses.
- The length of the marriage
- Interruptions in a spouse’s personal career or education
- Whether it makes sense to maintain assets without interference from the other spouse. For example, if one spouse is a partner in a small company, the court may award that spouse the full value of that company to avoid any disruption in how the business is managed. Awarding the other spouse a marital assets of comparable value could offset the value of the company.
- Either spouse’s contributions to enhancing the value of marital assets or of the non-marital assets of the other spouse.
- Whether the marital home should remain the primary residence for any children.
- Whether either spouse intentionally wasted property within the previous two years.
- Any other factor that the Court feels necessary to “do equity and justice between the parties”
As an example, if a wife puts her career on hold to stay home and take care of the children while the husband continued to advance in his career, a judge may award the wife a larger share of the assets at divorce. The rationale for this is that the wife may need retraining before she can enter the work force, or need a significant period of support before she’s able to find a job. This type of unequal distribution is more likely in a 15-year marriage than a three-year marriage, however. The judge will consider all of the factors before making an award.
Florida law details which property and debts are marital, meaning they belong to both spouses, and which are separate (nonmarital), meaning they belong to one spouse alone. Marital property includes:
- property acquired during the marriage by either spouse or the spouses jointly
- increases in the value of separate property that occurs during the marriage as a result of either spouse’s efforts or of contributions of marital funds or other assets
- gifts between the spouses
- retirement or pension benefits earned during the marriage, and
- any tangible property (such as real estate or cars) the spouses own together.
Separate property includes:
- property earned before the marriage
- any income earned from a non-marital asset unless it was relied on or treated as joint
- any gift to an individual spouse from a third person
- anything the couple agrees, in writing, is not marital property, and
- any liability that was incurred by forgery or an unauthorized signature of the other spouse.
In extraordinary circumstances, the judge may order distributions of property before the final judgment of divorce is entered. The spouse requesting the partial distribution must do so through a motion to the court and must state specific facts to document why this distribution cannot wait until the final judgment of divorce. The judge must take any partial distribution into account in the final allocation of the couple’s property.
Marital property is distributed before alimony is considered.