February 10, 2022
Every state has different rules regarding how a married couple divides property in a divorce. In Florida, the law requires an equitable division of property between divorcing spouses. However, equitable division does not necessarily mean equal division, as many people might assume. Rather, equitable division means that property division should be fair given all of the couple’s circumstances.
Factors Regarding Equitable Division
A family judge has discretion in determining what type of division will be fair.
The judge should base this decision on various relevant factors, including:
- How long the couple was married
- The economic circumstances for each spouse
- Any interruption of either spouse’s career or educational opportunities
- Contributions by one spouse to the other spouse’s career or educational opportunities
- A spouse’s contribution to obtaining or increasing wealth or income
- What each spouse contributed non-economically to the marriage, including being a homemaker
- Wrongful conduct by either or both spouses during the marriage, especially regarding hiding assets or property waste
- Liabilities incurred during the marriage by either spouse
- Either spouse’s intentional destruction or destruction of marital assets following the filing of the divorce petition or within two years before filing
Another factor a Florida judge will consider when dividing the property is how easy or difficult it will be to divide an asset. For example, if the couple started a business during the marriage, that business is a marital asset. Dividing the business may prove difficult. In that situation, a judge might award the business entirely to the spouse who operated it and give the other spouse other assets or property, such as the family home, to make up for it.
Who Gets to Keep Marital Home in Florida Divorce?
It is impractical to have a marital home split in two, so judges might award one spouse the home and, in return, that spouse buys out the other spouse’s share of the home. In certain situations, a judge can order the couple to sell the home and divide the proceeds.
A judge also has the discretion to award one spouse the right to temporarily live in a marital home, if in the judge’s view, this seems to be the most equitable and fair resolution of the living arrangements.
A major consideration in awarding the marital home to one spouse is how it will benefit any children the couple has who are still in school. The parent who has primary timesharing rights of the couple’s children might get to stay in the marital house in a divorce. This can give the children a stable and familiar living environment, which is often in their best interests.
As in all other divorce issues, the divorcing couple has the option to agree between themselves who should keep the marital home, and if they agree, the judge will generally go along with the agreement as long as it complies with Florida law.
Marital and Nonmarital (Separate) Property
A judge will only divide marital assets and debts. Marital assets include everything of value the spouses acquired during the marriage, and it does not matter whether they acquired the assets together or separately. This includes either spouse’s retirement benefits, such as 401(k)s, pensions, IRAs, vested and unvested stocks, and all other financial investments.
Property that a spouse acquired before marriage, obtained during marriage as a gift (other than a gift from the other spouse), or received through inheritance is separate or nonmarital property in most situations. Separate property is not subject to division in a divorce.
Separate property also includes:
- Anything the spouses designated in a valid prenuptial agreement as separate property
- Income from property separately owned by one spouse before the marriage, unless the spouses treated it as marital property
- Anything a spouse purchased with separate property
If the separate or nonmarital property increases in value during the marriage because of contributions of marital money or the efforts of either spouse, then the increase in value is marital property.
For example, if one spouse owned a business before the marriage, and the business increased in value during the marriage, then the original value of the business is separate property, but the increase in value is now marital property, and the spouses will need to divide that portion of the property.
Once the court determines which property is marital and which is separate, it will determine and assign a monetary value to each piece of property. If the couple reached an out-of-court agreement on their own, their attorneys can seek help from a professional appraiser or finance expert for this step. Some financial assets are difficult to evaluate and may require the assistance of a financial professional, such as a CPA or an actuary.
Title Holding in Property Subject to Division in Florida Divorce
How you hold title to property can be critical in determining who owns or has rights to what. Florida law presumes that any real or personal property held by a spousal couple as “tenants by the entirety” is marital property, and this is true irrespective of whether one spouse or both spouses acquired the property or whether they acquired it before or during the marriage.
To prevail in claiming that all or part of that property is separate, a spouse must present “clear and convincing evidence” to establish that as an indisputable fact. This is a difficult legal task, and a divorce lawyer can advise you of your options.
Dividing Marital Debt in Florida
Debts a divorcing couple accrued during their marriage also must be divided in a divorce. If the spouses cannot agree on who will pay what debts, a judge will decide that for them. The judge must also equitably divide a couple’s debts, considering the above factors.