Divorce is a painful process. Dividing the accumulations of a life together isn’t any easier, but some rules help make the process as fair as possible in Florida. Many of the questions we get from divorcing couples each day involve how to divide the assets and liabilities of a marriage. In many cases, we can help our clients reach a mutually acceptable agreement with an ex-partner before getting a judge involved. But if it’s not possible, a court will work to distribute marital property equitably.
Determining Marital Property
Before a court can place a value on a couple’s marital property, the court will need to determine what is marital property versus separate, or non-marital, property. In theory, everything a couple acquires during a marriage is marital property, including your bank accounts, car, home, and even retirement accounts. But separately owned property is not marital property, such as an inheritance, a gift, or assets you brought into the marriage. Separate property can also include:
Assets and liabilities that a couple agrees are separate in a written agreement;
Income from the separate property unless the couple has “commingled” the income with marital assets;
Property exchanged for or purchased with separate property.
The court will consider any pre-marital agreement about property division or any agreement signed during the marriage.
If you need representation in your property division case, reach out to our team of skilled attorneys.
Equitable doesn’t necessarily mean equal. While many people assume that a court will equally divide marital property during a divorce, Florida is not a community property state. Rather than split marital property right down the middle, the court will consider what is fair, reasonable, and equitable under the circumstances. The court will consider things such as:
How much each person came into the marriage with;
How long they’ve been married;
How much each spouse earns;
Who has primary responsibility for any children;
Whether one spouse stayed home to raise the children;
The earning potential of each partner;
Each spouse’s mental and physical health;
Potential tax consequences of the split; and
How much debt the couple has.
Everything you and your spouse acquired during the marriage is subject to equitable distribution laws regardless of who purchased the property and whose name is on it. Even if one party earned significantly more during the marriage, the court will still strive to make the property division equitable.
If one spouse attempts to hide assets, the court will consider that as well. In the end, one spouse can end up with anywhere between one-third and two-thirds of the couple’s assets, although this is a guideline.
Dividing the Property
Some assets that a couple owns can’t be easily halved, such as a family business or home. In cases like these, the court may order you and your ex-partner to sell the certain marital property to divide the asset. If one of you wants to keep the home, it’s possible to pay the other spouse for half of the value, or whatever amount the court determines is equitable. If you run a family business and are the only spouse involved, the court might give you the business and order you to pay your spouse or award your spouse other property to compensate for the business’s value.