How Florida Law and the Courts Divide Property in a Divorce
When couples first marry, they are often extremely eager to combine every aspect of their lives – emotional, physical, and financial. Merging financial affairs as a newly-married couple typically makes sense, because it aids in tracking and paying expenses and generally makes it easier to see the couple’s whole financial picture. This mingling becomes more complex the longer a couple is married, and if they later decide to divorce, untangling this arrangement can be tricky. Property division in divorce is commonly disputed, especially if one spouse is the breadwinner and main contributor to the accumulation of assets, and may require a judge’s order to resolve the issue. Certainly, couples who own large amounts and diverse types of property will present more complicated issues for property distribution, but even couples who own less may still find themselves arguing over who gets what. A recent article in the Miami Herald discussed the divorce of a wealthy, well-known couple in South Florida, and specifically looked at the demands of each party on the issue of property distribution. The Florida Legislature has realized the contentiousness of this issue, and created a number of legal provisions that established a system of property division to be applied by the courts.
Florida has an equitable distribution system for property division in divorce cases, which means that property is divided based on what is most fair under the facts of a particular case. Judges start from the premise that property should be divided equally, but also evaluate a number of factors to assess whether another arrangement would be more appropriate. Some of the factors the court looks at include:
- the contribution of each spouse to the marriage;
- the length of the marriage;
- the contribution of one spouse to the career or education of the other;
- the efforts of each spouse to generate income, to increase the value of assets and/or to accumulate debt; and
- the deliberate waste or dissipation of marital property two years prior or just after the filing of the divorce petition.
What equitable distribution means in practice is that if one spouse is primarily responsible for assuming debt or otherwise depleting the value or amount of available marital property, courts are likely to give the other spouse a greater share of the marital assets and assign more liabilities to the responsible spouse.
Marital vs. Non-Marital Property
Only marital property is subject to division in divorce, so it is important to understand what types of property are included in this category. Marital property includes:
- assets and liabilities accumulated during the marriage by one individually or both spouses together;
- non-marital assets that increase in value during the marriage due to efforts by either spouse to raise the value, or due to the contribution of marital funds and/or assets;
- gifts between spouses; and
- all vested and unvested interests in pensions, retirement accounts, and insurance policies. Active military service during the marriage affects the distribution rights of the non-military spouse in retirement benefits.
Note that all real and personal property jointly owned by married couples are automatically presumed to be marital property, and can only be overcome by the presentation of convincing evidence to the contrary.
Non-marital property, on the other hand, includes:
- assets and liabilities acquired before marriage;
- assets obtained during marriage through inheritance or non-spousal gift;
- income created by non-marital assets, unless the income was depended upon as a marital asset;
- assets and liabilities expressly excluded from marital property per written agreement; and
- liabilities incurred due to the forgery of a spouse’s name by the other spouse, which is treated as the non-marital property of the accountable party.
Contact a Divorce Attorney
If you are facing divorce, avoid negotiating a settlement or disputing your spouse’s demands in court without the advice an experienced divorce attorney. Otherwise, you may unknowingly give away rights or assume obligations unnecessarily. The attorneys at the Tampa law firm of Bubley & Bubley, P.A. represent clients in a number of family law matters, and can assist you with your case. Contact us for a free consultation.