States have different rules about how property is divided in a divorce. Florida law requires an equitable, or fair, division of property between the spouses. Although equitable division usually means equal, a judge who believes that a 50/50 split would be unfair can divide the property in a different proportion after considering all relevant factors, including the following:
A Florida judge 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 it may be hard to split. In that type of case, a judge might 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 split a marital home, but a judge may award one spouse the home in exchange for buying out the other spouse’s share of the home. In other cases, a judge may order the couple to sell the home 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 children who are still in school. A custodial parent (parent who primarily lives with the couple’s children) would be more likely to be awarded a house in a divorce because it would give the children a stable living environment.
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.
Only marital assets and debts are divided when a couple divorces. Marital assets include everything the spouses acquired, both separately and together, during the marriage. This can include either spouse retirement benefits such as IRAs, pensions, and 401(k)s, vested and nonvested stocks, profit-sharing benefits, annuity, deferred compensation, and insurance plans and programs. See Fla. Stat. § 61.076 (2020).
Property is separate—or nonmarital—if a spouse owned it before marriage, acquired it during marriage as a gift (not including gifts from the other spouse), or acquired it by inheritance.
Separate property also includes:
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.
A judge will divide a couple’s debts based on an equitable distribution approach. Once a court (or couple) has determined which property is marital and separate, the couple and/or 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.
Understanding the range of a couple’s debts and assets is crucial to a fair property award. Debts are treated like assets in a divorce. A judge will attempt to divide a couple’s debts equitably, but this doesn’t always mean an equal split. Instead, if one spouse has a lucrative career and the other spouse is unemployed, the higher earning spouse will likely be awarded most of the couple’s debts.
If you’re worried about the outcome of a divorce trial, you can take control of your case by reaching a settlement agreement with your spouse. A settlement agreement resolves all issues in your divorce. 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 their children are out of school, or keep an investment property in hopes it will increase in value. In a settlement agreement, the couple must also assign all debt accrued during the marriage, including mortgages, car loans and credit card debts, to one of the spouses.
Some couples are able to reach agreements on their own. In other cases, a couple may hire a mediator to help them negotiate a fair settlement. A judge will have to approve any settlement and an agreement that is patently unfair to one spouse won’t be approved.
If you’re unsure about drafting a settlement agreement yourself, you can contact a local family law attorney for help.