States have different rules about how property is divided at divorce. Florida law requires an equitable, or fair, division of property between the spouses. The law says that equitable usually means equal—but a judge who believes that a precisely equal division would be unfair can divide the property in a different proportion after considering all relevant factors, including the following:
- the length of the marriage
- each spouse’s economic circumstances
- any interruption in either spouse’s career or educational opportunities
- each spouse’s contributions to the marriage, including contributions as a homemaker or parent,
- either spouses contribution to the career or educational opportunities of the other spouse
- each spouse’s contribution to acquiring or increasing income
- each spouse’s contribution to improving marital or nonmarital assets
- liabilities incurred by either spouse, whether affecting martial or nonmarital assets, and
- either spouse’s intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition for divorce or within 2 years prior to filing.
A Florida court dividing property will also consider how easy or difficult an asset is to divide. For example, a business started by one spouse during the marriage would generally be a marital asset, but in most cases the judge would award the business entirely to the operating spouse, while giving the other spouse other property or money to make up for it. A court won’t order a couple to divide a marital home--in other words, to each take part of the actual house--but the judge could order them to sell it and divide the proceeds. A judge also has the option of awarding one spouse the right to live in a marital home temporarily, if this seems to be the most equitable resolution. The court will give particular consideration to how this option might benefit any childrenwho are still in school.
Some couples are able to agree on how to divide everything on their own, while others seek the help of attorneys or a mediator to negotiate a settlement. Couples who don’t manage to resolve property issues outside of court will end up going to court to ask for a decision from an arbitrator or a judge.
(Learn more about Florida No Fault Divorce.)
Marital and Nonmarital (Separate) Property
Only marital assets and debts are divided when a couple divorces. Marital assets includes everything the spouses acquired, both separately and together, during the marriage. Florida law also says that marital assets include all vested or nonvested benefits, rights or funds either spouse accrues during the marriage, including retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
Property is nonmarital, or separate, if a spouse owned it before marriage or acquired it during marriage as a gift (not including gifts from the other spouse), or by inheritance. Separate property also includes:
- assets and debts that the spouses have defined in a valid written agreement as separate property,
- income from separate property, unless the spouses have treated the income as marital property, and
- items purchased with or exchanged for separate property.
If separate property increases in value during the marriage as a result of contributions of marital funds or the efforts of either spouse, then the increases in value are marital property. For example, if one spouse owned a business prior to the marriage and it increased in value during the marriage, the original value of the business would remain separate property, but the increase in value would be marital property, and that property would have to be divided between the spouses.
A spouse can convert nonmarital property to marital property by changing title from individual to joint ownership, in which case a court would presume that the spouse intended to make a gift of the property to the marriage.
How you hold title can be very important. There is a very strong presumption under Florida law that all real or personal property held by the parties as "tenants by the entireties" is marital property, regardless of whether one spouse or both spouses acquired the property and whether they acquired it before or during the marriage. Any spouse claiming that all or a part of such property is separate must present clear and convincing proof, so check your deed before arguing that certain property is separate.
Marital and separate property can be mixed together—sometimes called “commingling.” Some couples combine their separate assets intentionally; others do so without thinking about it. A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses during the marriage. If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether any or all of the commingled property was a gift to the marriage or whether the original owner should be reimbursed in whole or in part. These situations can be very complicated and may require the assistance of an attorney.
After determining which property is marital property, the couple, or the court, will assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Some financial assets, such as retirement accounts, can be very difficult to evaluate and may require the assistance of a financial professional, such as a C.P.A. or an actuary.
Dividing the Property
Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets substantially more than the other, or by selling property and dividing the proceeds. Couples who get along fairly well with one another sometimes agree to continue owning property together for some specific purpose. For example, they might agree to keep the family home until children are out of school, or keep an investment property in hopes it will increase in value.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.