Are you considering, or going through, a divorce? Understanding how your marital property will be divided is an important step in the divorce process. In today’s article, we discuss what marital property is and how it is divided when divorcing in Florida.
Under Chapter 61 of the Florida Statutes, Florida is an equitable distribution state, and marital property is divided fairly between divorcing spouses. The court considers several factors in determining a fair and appropriate division of property.
Only marital property will be considered for equitable division – generally, all assets acquired during the marriage. Non-marital property (separate property) is not considered for equitable distribution. And, if nonmarital assets are commingled with marital property, they may be subject to equitable distribution.
Assets deemed non-marital property include:
- Assets acquired before a marriage
- Assets acquired after a separation
- Assets or property given to one spouse as a gift
- Assets acquired through inheritance
- Some personal injury settlements are deemed non-marital property.
If the home was acquired before marriage or inherited separately, but the parties contribute equally during the marriage, the property may be considered marital.
Determining the status of the property, whether marital or nonmarital, may determine how assets are divided and impact child support and alimony determinations. Especially in a high asset divorce.
The preferred practice in most cases is to negotiate a settlement of the division of property be laid out in a Marital Settlement Agreement. This covers a division of assets, debts, custody and support issues and what all the terms of a divorce will be. Asset division often leads to disagreements, and in Florida, attendance at a mediation is often required to try and achieve a reasonable agreement.
Because Florida is an equitable distribution state and debts are treated similarly to marital property division. This means debts may not be divided equally. A spouse with more income may be required to pay more. How the debt was incurred may factor into the judge’s decision.
Premarital debt is the responsibility of the spouse who incurred it. However, if the debt was commingled during the marriage, it may be considered marital debt.
Non-marital debt is debt that is listed in one spouse’s name, such as a credit card or a business loan. If only one spouse benefitted from the debt, then they are responsible for it in a divorce.
Most debt in a marriage is joint debt, including credit cards, auto loans, home loans, or other debt incurred to buy personal goods.
Division of Assets
In an equitable distribution state, assets are divided fairly and equitably and not necessarily a 50/50 split. Instead, the judge begins with equal distribution and then will adjust the division based on several possible factors.
These may include:
- Each spouse’s economic circumstances.
- Contributions to the marriage by each spouse including contributions as a homemaker and caring for children.
- The duration of the marriage.
- Whether one spouse contributes to the education or career advancement of the other spouse.
- Whether one spouse put their career on hold for the good of the marriage.
- The contribution of each spouse in acquiring income and debts.
- How desirable is it to keep the family home for the good of continuing to raise children.
- Whether one spouse dissipated marital assets prior to the filing of a divorce petition, either through substance abuse, gambling or other reckless pursuits.
- Other factors that are pertinent in fairly determining the equitable distribution of assets.
In Florida, any gifts given to one spouse either before marriage or after the date of separation are considered separate non-marital property and not subject to a division of assets.
One spouse’s gifts to another during the marriage are considered marital property, whether it’s a car, jewelry, or even a separate bank account that one spouse opened for the other. Even if you’re designated as the sole owner, it is considered marital property.
Gifts given to one spouse by someone else are considered non-marital property. However, if you commingle the gift by putting it into a joint bank account, it may become marital property.
The general rules apply to inheritance. If it is left to both spouses, it is part of equitable distribution. If it was left to one spouse only and not commingled, it is a non-marital asset and will not be included in equitable distribution.
However, if a separate inheritance is commingled with marital assets, it will also become a marital asset. For example, if you inherit a home, but both you and your spouse move into the home, it could be considered community property.
At all times, it is best to keep inherited assets separate if there is a possibility of divorce that looms in the future. One other way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby they agree that the inheritance is yours, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
It is possible to negotiate to keep a more significant part of a retirement fund in exchange for one spouse receiving a larger interest in other community assets.
Legally splitting pensions and other retirement funds are a multi-step process. First, a divorce decree must order that these assets be divided. A qualified domestic relations order, more commonly referred to as a QDRO, must then be created.
To get a QDRO online, we highly recommend using QDRO Counsel! Their great platform makes drafting your qualified domestic relations order fast and easy.
The courts must approve the QDRO, and then it can be submitted to the plan administrator, who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
Have more questions? The legal team at Brodie Friedman is here to help. We are currently offering virtual consultations.
With over 30 years of combined experience, Jason Brodie Esq. and Joshua Friedman Esq. will guide you toward realistic goals and provide committed advocacy toward achieving them. They are known throughout South Florida for dedicated client service, tenacity, and success in complex divorce litigation involving property division, child custody, and spousal support.
To get a better understanding of the qualities our reputation is built on, contact our office in Boca Raton to schedule your initial phone consultation (561) 392-5100