Florida divorce division of assets

Different states have different rules for dividing assets in a divorce. Florida law requires an equitable division of assets between spouses. Although equitable division is usually synonymous, a judge who believes that a 50-50 division would be inequitable may divide the property in a different ratio after considering all relevant factors, including the following:

  • the duration of the couple's marriage
  • the economic circumstances of each spouse
  • Any interruption in a spouse's career or educational opportunities
  • Each spouse's contribution to the marriage, including as a homemaker or parent,
  • The contribution of one spouse to the career or educational opportunities of the other spouse
  • the contribution of each spouse to the acquisition or increase of income
  • The misconduct of each spouse during the marriage
  • Each spouse's contribution to the improvement of marital or non-marital property
  • The liabilities incurred by either spouse, whether they relate to marital or nonmarital property; and
  • The intentional waste, dissipation, depletion or destruction of marital assets by one of the spouses after filing for divorce or within two years prior to filing.

A Florida judge will also consider how easy or difficult it is to divide an asset when dividing assets. For example, a business started by one spouse during the marriage is usually a marital asset, but it can be difficult to divide it up. In such a case, a judge might award the business entirely to the operating spouse, while awarding other assets or money to the other spouse as compensation.

Who gets the house in a Florida divorce?

A court will not order a couple to divide the marital home, but a judge may award one spouse the home if he or she buys out the other spouse's share of the home. In other cases, a judge may order the couple to sell the home and divide the proceeds. A judge may also award a spouse the right to live temporarily in the marital home if this seems to be the fairest solution.

The court will give special consideration to how this option might benefit any children who are still in school. A custodial parent (parent who lives primarily with the couple's children) is more likely to be awarded a home in a divorce because it provides a stable living environment for the children.

Some couples manage to agree on the division of property themselves, while others seek the help of lawyers or a mediator to negotiate an agreement. Couples who fail to resolve property issues out of court eventually have to go to court to get a decision from an arbitrator or judge.

Marital and non-marital (separate) assets

When a couple divorces, only marital assets and debts are divided. Marital property includes everything the spouses acquired during the marriage, both separately and jointly. These may include retirement benefits of both spouses, such as IRAs, pensions and 401(k)s, vested and unvested stock, profit sharing, annuities, deferred compensation, and insurance plans and programs. See Fla. Stat. § 61.076 (2020).

property is separate – or non-marital – if one spouse owned it before the marriage, acquired it as a gift during the marriage (excluding gifts from the other spouse), or acquired it by inheritance.

Joint assets also include:

  • Assets and debts that the spouses have designated as separate property in a valid prenuptial agreement,
  • Income from separate property, unless the spouses treated the income as marital property; and
  • Items purchased with separate property or traded for it.

If separate property increases in value during marriage because one spouse contributed or made an effort to contribute marital property, the increase in value is marital property. For example, if one spouse owned a business before marriage and it increased in value during the marriage, the original value of the business would remain separate property, but the increase in value would be marital property, and that property would have to be divided between the spouses.

A spouse may convert nonmarital property to marital property by converting the property from individual to community property, in which case a court would presume that the spouse intended to bring the property into the marriage.

The way you hold the property can be very important. Under Florida law, there is a very strong presumption that any real or personal property held by the parties as "tenants by the entirety" is marital property, regardless of whether one spouse or both spouses acquired the property and whether they acquired it before or during the marriage. Any spouse claiming that all or part of property is separate must present clear and convincing evidence. So check your deed before arguing that certain assets are separate.

Marital and separate property may be commingled, sometimes referred to as "commingling". Some couples intentionally mix their separate assets, others do so without thinking about it. A premarital bank account owned by one spouse can become marital property if the other spouse makes deposits into it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses during the marriage.

If the spouses cannot decide what belongs to whom, the judge must decide whether some or all of the commingled property was a gift to the marriage or whether the original owner should be compensated in whole or in part. These situations can be very complicated and may require the help of a lawyer.

How debts are divided in Florida?

A judge will divide a couple's debts based on equitable distribution. Once a court (or a couple) has determined which assets are marital and which are separate property, the couple and/or the court will assign a monetary value to each item. Couples who need help determining value can hire professional appraisers. Some financial assets, such as z. B. Pension accounts, can be very difficult to evaluate and may require the help of a financial expert, such as z. B. From an accountant or actuary.

Understanding the extent of a couple's debt and assets is critical to equitable asset allocation. Debts are treated as assets in a divorce. A judge will try to divide a couple's debts fairly, but that doesn't always mean an equal split. If one spouse has a lucrative career and the other spouse is unemployed, the higher-earning spouse will likely be awarded most of the couple's debt.

Settlement Agreements in Florida Divorces

If you are concerned about the outcome of divorce proceedings, you can take control of your case by reaching a settlement agreement with your spouse. A settlement agreement resolves all issues related to your divorce. Spouses can divide assets by allocating certain items to each spouse, possibly with an equalization payment if one spouse receives substantially more than the other, or by selling property and dividing the proceeds.

Couples who get along well sometimes agree to continue to own property jointly for a specific purpose. For example, they might agree to keep the family home until the children are out of school, or to keep an investment property in the hope that it will increase in value. In a settlement agreement, the couple must also assign all debts accrued during the marriage, including mortgages, car loans and credit card debt, to one of the spouses.

Some couples manage to reach an agreement themselves. In other cases, a couple may hire a mediator to help them negotiate a fair agreement. A judge must approve any settlement, and an agreement that obviously disadvantages one spouse will not be approved.

If you are unsure about drafting a settlement agreement yourself, you may want to contact a local family law attorney.

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