Florida Divorce: Dividing Property

When asked to name a hot-button issue in a divorce, most people tend to say child custody or alimony. But dividing a couple's property can be a major bone of contention, especially if they own a house together. If you're getting divorced in Florida, it's important to understand how the state's laws deal with property distribution and allocation of debts.

Is Florida a Community Property State?

No, Florida isn't a community property state. The principle of "equitable distribution" controls property division in Florida divorces, which means that judges will divide a couple's property based on what's fair.

Fair doesn't necessarily mean a 50-50 split—the goal in most community property states. However, the distinction between community property and equitable distribution rules isn't as clear in Florida as in some other states. That's because Florida law requires judges to approach each divorce with the premise that the property division should be equal, unless there's a reason for a different outcome (more on that below).

Marital Property vs. Separate Property

Before a divorcing couple's assets and debts can be divided, there are preliminary steps. The first is to identify which property is marital and which is separate (nonmarital). The distinction is critical, because each spouse normally keeps their own separate property, while only the marital property is included in the distribution during divorce.

What Counts as Marital Property in Florida?

Under Florida law, the following assets and debts count as marital property that will be distributed between the spouses:

• assets that the spouses acquired or debts that they incurred (whether individually or jointly) during their marriage
• the paydown of the principal on a mortgage for real estate that one spouse owns as separate property, as well as a portion of any appreciation in that property that's due solely to market conditions—but only if the couple used marital funds to pay down the mortgage
• the increase in value of one spouse's separate property that resulted from either spouse's efforts or the use of marital funds (such as when they used money earned during the marriage to pay for a renovation, or one spouse contributed labor to the renovation)
• gifts the spouses gave to each other during the marriage
• all real estate or personal property (whether that property was acquired before or during the marriage) held by the spouses as "tenants by the entireties" (unless one of them can prove that all or part of it is not marital property), and
• all vested and nonvested benefits, rights, and funds that accrued during the marriage in retirement accounts, pension plans, annuities, profit-sharing plans, insurance plans, and deferred compensation programs.

You might think that "during the marriage" means before the couple divorced. But Florida law establishes a different cut-off date in this context. Assets and debts will no longer be considered acquired or incurred during the marriage after the earliest of the following:

• when the couple signed a valid separation agreement
• another date that the spouses chose in that agreement, or
• when one of the spouses filed for divorce.

(Fla. Stat. § 61.075(6)(a), (7) (2024).)

What Counts as Separate Property in Florida?

Under Florida law, separate property includes:

• assets and liabilities that either spouse acquired or incurred before the marriage and after the cut-off date for classifying marital property (discussed above), as well as other assets and debts taken on in exchange for those separate assets and liabilities
• assets that either spouse received as an inheritance or gift (other than from the other spouse), as well as assets acquired in exchange for those gifts or inheritances
• income from separate assets, unless the spouses treated that income as marital property
• any assets and liabilities that the spouses agreed not to include as marital property, as long as they did so with a valid written agreement (such as a prenuptial agreement), and
• any debt that a spouse took on through forgery or by signing the other spouse's name without authorization.

(Fla. Stat. §61.075(6)(b) (2024).)

Can Separate Property Become Marital Property?

Separate property can become marital property in certain situations. Sometimes this is intentional; sometimes it's not. The most common way this happens unintentionally is when couples mix marital and separate property—sometimes called "commingling." For example, if a spouse inherits money but deposits it in a bank account that has the couple's marital funds, the separate-property inheritance becomes marital property. The way to avoid this is to keep the inheritance or other separate property funds isolated in a separate account.

Valuing Assets and Debts in a Florida Divorce

After classifying a couple's property as marital or separate, the next step is to assign a monetary value to the marital assets and determine the amount of the marital debts. If you and your spouse can agree on these values yourselves, you'll save time and money (think attorneys' fees) by not having to fight over the issue in court.

It's relatively simple to determine the value of some assets and debts, such as bank accounts and credit card balances. But you'll probably need the the help of an appraiser or other valuation expert for some other assets, including:

• the family home or other real estate
• expensive jewelry or art
• retirement plans or accounts, particularly pensions or any retirement accounts that either spouse contributed to before the marriage, or
• a family-owned business or a professional practice.

If you and your spouse aren't able to agree on the value of any of your assets or debts, a judge will have to decide for you. Because values change over time, the valuation date can make a difference. Under Florida law, judges may value assets and debts as of any date they believe is fair. They may even use different dates for different assets when that's necessary under the circumstances. (Fla. Stat. §61.075(7) (2024).)

Can Couples Agree on How to Divide Their Property?

The easiest way to avoid a battle over whether property will be separate or marital is to agree in advance how that will work in your marriage. A prenuptial (or premarital) agreement can save a lot of headaches down the road. These agreements can list all of the specific property and debts that each spouse is bringing into the marriage, as well as set out the rules on how to handle property and debt acquired or disposed of during the marriage.

If you don't have a prenuptial agreement, you can still reach an agreement about your property when you're getting divorced. You'll have to submit your signed, written agreement to the court so that it can be made part of an official court order. But judges ordinary approve property agreements as long as they appear fair to both spouses.

Also, if you're able to reach a comprehsive divorce settlement agreement before you file for divorce—meaning that you've resolved all the legal issues involved in ending your marriage, including child support and custody—you can take advantage of the time and cost savings of an uncontested divorce in Florida.

How Do Judges Decide on an Equitable Distribution of Property?

If you and your spouse can't agree how to divide your property, you'll have to go to trial and have a judge decide for you.

As discussed above, Florida law requires judges to begin this process by assuming that the distribution should be equal—that is, that the total value of the assets each spouse receives, minus the amount of debts assigned to each, should be the same. But judges may order an unequal distribution if that's justified in order to reach a fair result, based on all of the relevant circumstances, including:

• the spouses' economic circumstances
• how long the couple was married
• whether one spouse interrupted their personal career or educational opportunities—for instance, to raise the kids or contribute to the other spouse's career or education
• whether it would be in the best interests of the couple's child or children to stay in the family home with one of the parents for some time after the divorce, as long as it would be financially feasible and fair for the spouses to maintain the home while only one of them lives there
• each spouse's contribution to their marital and separate assets, including producing income from those assets, improving them, or incurring liabilities on the assets
• whether a particular asset (such as an interest in a business or professional practice) should be kept free from the other spouse's interference or claim
• whether either or both spouses intentionally wasted, depleted, or destroyed any marital assets within two years before one of them filed for divorce, or any time after that.

The judge may order one spouse to pay cash to the other (either in full or in installments) in order to achieve a fair property distribution. But those payments (sometimes called "equalizing payments") are different than alimony, which the judge doesn't have to consider when deciding whether an unequal distribution is justified. After ruling on the property issue, the judge will then consider whether either spouse needs alimony.

(Fla. Stat. §61.075(1), (9) (2024).)

Who Gets the House in a Florida Divorce?

When couples own a house, it's often their most valuable asset—which means it can be the focus of disputes over dividing their property when they end the marriage. Nothing in Florida law specifically says which of them should get the property in a divorce. But because judges will consider whether it's best for a child to stay in the family home (as discussed above), they may be more likely to allow the custodial parent to have possession of the house (while the couple continues to co-own the property after the divorce), or even to award the property to that spouse.

If the judge awards ownership of the house to one spouse, that doesn't mean the other spouse will get nothing in return. The judge will still make sure that the overall property distribution is fair. For instance, the judge might:

• award the other spouse a fair amount of other valuable marital property, such as retirement accounts, or
• order the spouse who gets the house to buy out the other spouse with cash.

In the case of a buyout, the judge may decide that one spouse is entitled to credits or setoffs, after considering the circumstances (such as the tax consequences and whether the spouse who keeps the home will receive child support payments that will at least partially go toward the mortgage and other expenses).

Of course, not all couples have enough other property (or the wherewithall to make cash payments) in order to achieve fairness when one spouse gets the house. In those situations, the judge will probably order them to sell the house and divide the proceeds between them.

Fla. Stat. §§ 61.075, 61.077 (2024).

Can Florida Judges Distribute a Couple's Property Before the Divorce Is Final?

While couples are going through their divorce, judges will often issue temporary orders dealing with issues like child support, custody, and alimony. But most of the time, any distribution of their property and debts must wait until the final divorce.

In extraordinary circumstances, however, Florida law allows judges to issue temporary orders that identify a couple's marital and separate property, set aside the separate property, and partially distribute the marital assets and debts. One of the spouses must request the partial distribution with a formal motion that spells out why the issue can't wait until the final hearing in the divorce.

(Fla. Stat. § 61.075(5) (2024).)

Getting Help With Property Distribution

If you're having trouble reaching an agreement with your spouse about dividing your property and debts (or any other issues), divorce mediation might help. You may want to consider choosing a mediator with financial expertise (such as a certified divorce financial analyst) who can assist with asset valuations as well as helping you agree on a property division that's fair to both of you.

But if mediation doesn't work or isn't appropriate in your case (such as when one spouse is hiding assets), you should consider speaking with an experienced family lawyer who can help you make sure that you get a fair amount of your marital property and don't get saddled with more than your fair share of debts from the marriage.