One of the most common questions that arise in divorce negotiations is whether property will be divided evenly between the two spouses. There is no straightforward answer to this in Florida, as property will be divided based on what is most fair to each spouse. In this blog, we will talk about Florida’s equitable distribution rules for property division and what kind of marital and separate property may be subject to division.
Equitable Distribution Rules
When it comes to property division, Florida is an equitable distribution state, which means it divides marital property equitably but not necessarily equally. That is, the court will not necessarily order a 50/50 split of property. To determine just how to divide marital property, the court will consider the following factors:
- each spouse’s income and earning potential;
- the length of the couple’s marriage;
- the number of minor children at home;
- each spouse’s economic circumstances;
- whether one spouse made career sacrifices for the other spouse’s education or job;
- each spouse’s contributions, such as improvement of marital or nonmarital assets and contributions as an income-earner or as a parent or homemaker;
- each spouse’s debts and assets;
- each spouse’s overall physical and mental health; and
- other relevant factors.
The appropriate property division decision will factor in the above to meet the needs of both spouses after divorce and the best interests of any shared children. It is possible, for instance, that a judge may order an unequal division if it is favorable to allow the couple’s minor children or either spouse to reside in the marital home, or if one spouse’s contributions to the marriage related to homemaking, so they need more support to readjust to post-divorce life.
In some cases, a court may also consider the difficulty of dividing certain assets. For example, if one spouse started a business during the marriage, which may constitute it as marital property, the judge may choose to award the business to the one spouse and a larger amount of other property to the other spouse to compensate for their marital interest in the business.
Note that couples can negotiate their own agreements about dividing property on their own or in mediation. If they cannot reach an agreement, however, a judge will make the final decision.
Marital Property and Separate Property
It is important to distinguish between marital property and separate property when facing property division matters, as marital property is subject to division and separate property is not. However, it is possible in some situations for a Florida judge may award a portion of a person’s separate property to the other spouse if the judge deems it fair.
Marital or community property is property acquired during the marriage that belongs to both spouses and will be divided between both. Some examples of marital property include all assets and debts and property like money and retirement accounts (401(k)s, IRAs, deferred compensation, profit-sharing accounts). Note that Florida allows spouses to share marital assets and debts, even if the property or debt is titled only in one spouse’s name.
Separate property is property that one spouse owned before the marriage or acquired during the marriage as a gift or inheritance. Some examples of separate property include:
- assets and debts defined as separate in a valid marital written agreement;
- income from separate property; and
- items exchanged for or purchased with separate property.
Be aware that if an increase in the value of separate property during the marriage resulted from the contribution of marital funds, the increased value constitutes marital property up for division.
It is possible in certain cases for transmutation of property, where a spouse can change separate property into marital property by changing the title into a form of joint ownership. The court will presume that any property a couple owns jointly is marital property, even if one spouse acquired the property on their own before marriage. It is also possible for separate property to become marital property by mixing the two assets together – or “commingling” property. For example, a spouse who places marital funds into a premarital bank account or pays the mortgage on a separate property with marital earnings commingles their separate property with their marital property, thus rendering the separate property as marital. To argue for such property to remain separate requires a thorough trace of funds and experienced legal representation.
Questions? Let Tinny, Meyer & Piccarreto, P.A. Help.
Property division is often a touchy topic of divorce, as it could lead to high conflict over how to distribute certain marital assets. An experienced lawyer can help you negotiate a settlement in your best interests, as they help you determine what marital property is up for division and what separate property can be excluded from distribution. Florida courts are unlikely to simply divide property straight down the line 50/50, so it is advisable to consult a lawyer to ensure your property and spousal rights are being protected in the process of property negotiations in a Florida divorce.
Contact Tinny, Meyer & Piccarreto, P.A. to get started today.
