Equitable Distribution of Property in Florida

Is Florida a Community Property State?

No, Florida is not a community property state. Like the majority of states, Florida follows equitable distribution rules. A small group of states adhere to community property principles, but Florida is not one them.

Is Florida a 50/50 Divorce State?

Under an equitable distribution approach, your marital property will be divided equitably or fairly, but not necessarily equally. Often, equitable division doesn't result in a 50/50 split.

Florida judges consider several factors when dividing property, including:

• each spouse's income and earning potential
• the length of the couple's marriage
• the number of minor children at home
• whether one spouse made career sacrifices for the other spouse's education or job
• each spouse's debts and assets
• each spouse's overall physical and mental health, and
• any other relevant factor.

After considering the above factors, a judge will make a property determination that meets the needs of both spouses and serves the best interests of the couple's children, if any.

Categorizing Property as Separate or Marital in Florida

The nature of your property (whether its marital or separate) can impact how it's divided in your divorce. Marital property belongs to both spouses and will be divided accordingly. Typically, separate property is owned by one spouse and that spouse will receive it in a property settlement. However, Florida judges can award all or portions of a spouse's separate property to the other spouse if a judge determines that it would be fair.

What Is Separate Property in Florida?

Before dividing property in a divorce, a couple must determine whether either spouse owns any of the property separately. Separate (or nonmarital) property is generally not subject to division in a Florida divorce. Property is considered separate if one spouse owned before the marriage or acquired it during the marriage as a gift (not including gifts from the other spouse) or an inheritance. Separate property also includes:

• assets and debts a couple defines as separate property in a valid written agreement (a premarital agreement, for example)
• income from separate property, unless the spouses have treated the income as marital property, by "commingling" it, for example (see below), and
• items exchanged for or purchased with separate property.

What Is Marital Property in Florida?

Unless a couple has a valid written agreement stating otherwise, marital property in Florida includes all assets and debts either spouse acquires during the marriage. Spousal rights in Florida allow spouses to share marital assets and debts, even if the property or debt is titled only in one spouse's name. For example, if your spouse opens a credit card account and your name is not on it, you are still jointly responsible for the charges on the card, even if your spouse did all the spending (unless a court finds that your spouse wasted assets or hid the account from you).

Assets include money, property, and retirement accounts such as 401(k)s, IRAs, deferred compensation, or profit-sharing accounts. Benefits are marital property whether they are "vested" or not (meaning whether the right to receive the benefits is absolute or depends on some future condition, such as continuing to work for a certain number of additional years).

If you or your spouse accrued benefits both before and during marriage, you may need to consult an attorney to find out what portion is marital property. You may also need an opinion about the value of the benefits from a financial advisor. See Fla. Stat. § 61.076 (2020).

A spouse can change separate property into marital property (essentially making a gift of separate property to the other spouse) by changing the title into a form of joint ownership. This is called a transmutation of property. A Florida court will presume that any property a couple owns as "tenants by the entireties" is marital property, even if one spouse acquired the property separately before marriage. Convincing a court to treat such property as separate will be difficult, if not impossible.

The increase in value of separate property during the marriage is also marital property if it resulted from the contribution of marital funds or the active efforts of either spouse. This includes efforts such as maintaining a home, or working in a business.

A spouse can also make a gift of separate property to the marriage by mixing it with marital property—sometimes called "commingling." There are many ways this can happen—depositing marital funds into a premarital bank account, for example, or paying the mortgage on a separate property with marital earnings. In this kind of situation, a court might treat all of the property as marital. The spouse claiming that part of the property is separate would have to trace the separate source of the funds using detailed financial records. These situations can be very complicated and usually require the assistance of an attorney.

How Is Property Divided?

Couples can reach agreements about dividing property either on their own or with the help of a mediator. Courts generally uphold such agreements as long as they are in writing and each spouse has had an opportunity to consult with an independent attorney. If a couple can't reach an agreement, a judge will decide.

As stated above, assets are usually divided equally; however, the judge can make an unequal division after considering all of the relevant circumstances, including the following:

• the length of the marriage
• each spouse's overall economic circumstances
• the desirability of allowing the couple's minor children, or either spouse, to continue living in the marital home
• each spouse's contributions, including improvement of marital or nonmarital assets and contributions to the marriage either as an income-earner or as a parent or homemaker
• whether either spouse interrupted a career or education during the marriage or contributed to the other spouse's career or education
• each spouse's debts and liabilities, and
• whether either spouse intentionally wasted or destroyed marital assets either after the divorce petition or within the two years preceding it.

Another factor court's consider is the difficulty of dividing certain assets. For example, in most cases a judge would try to award a business started by one spouse during the marriage entirely to that spouse and award other property or money to the other spouse to make up for the marital interest in the business.

A court won't divide up a home and award each spouse part of it, but might order the couple to sell the marital home and divide the proceeds. If a marital home is the couple's only major asset, a judge might also order the couple to wait until some future date to sell the home and divide the proceeds, and award one spouse a temporary right to live in the home. This is a particularly common result when the couple has minor children still living in the home.

If you have questions, contact a local attorney for advice.