How to Divide Marital Assets in Florida During a Divorce
In some divorce cases, the only thing both spouses can agree on is that they should get a divorce. When dollars enter the picture, especially if a lot of money is on the table or if the couple has been married for decades, dividing marital assets becomes a steep hill to climb.
One of the most common questions we receive from our clients is how to divide marital assets during a divorce. There’s no easy answer to this question – it’s highly dependent on the specifics of each’s couple case. To find your answer, start by gaining an understanding of the laws and processes for dividing marital assets in Florida.
When You’re Dividing Marital Assets, the Devil is in the Details
Florida, like most states, operates as an equitable distribution state. Equitable distribution laws lump a couple’s assets into two categories: marital and non-marital.
As you may have guessed, a marital asset is an asset earned during the marriage and a non-marital asset is an asset earned before the marriage. Sounds simple. But believe it or not, there’s a huge gray area surrounding both types – a part of the reason dividing marital assets can be such tricky business.
For example, let’s take your and your spouse’s home. Let’s say you purchased your home before you were married. Then, after marriage, you added your spouse to the deed of the home. During a divorce, your home is now a marital asset even though it was brought into the marriage.
Quick Tip: In determining whether certain property is a marital asset, the question is not which party holds title to the asset. The question of a marital asset is often answered based on fairness.
The first step in dividing your assets is to determine whether they’re marital or non-marital. If you and your spouse don’t agree on how to divide each asset, a judge will do it for you.
Here are the factors a judge considers when dividing marital assets in Florida:
- Was the asset or liability earned, acquired, or incurred during the marriage? This is true regardless of who earned or incurred the cost.
- Was the asset a gift from one spouse to the other?
- Was the asset earned by one spouse before the marriage and never combined with the couple’s joint finances?
- Did some portion of non-marital assets increase in value during the marriage?
- Did some portion of investment accounts, including retirement funds, deferred compensations, insurance plans and programs, pensions, annuities, and profit-sharing programs increase in value or equity during the marriage?
- Did income from a non-marital asset become marital property? Was that income relied upon by both spouses as a marital asset?
- Is there a signed written agreement that excluded specific assets or liabilities as marital property?
Once You Have Your List of Marital Assets, Give Each Asset a Dollar Value
In order to fairly divide your marital assets, a judge will determine the dollar value of each asset. In some cases, an asset may be appraised to determine its fair market value.
Then the court decides how to divide the assets fairly and equitably. To tackle this task, the judge will also consider these factors:
- How long the marriage lasted
- The financial circumstances of each spouse
- The financial contributions of each spouse
- Whether one parent stayed home to raise the couple’s children
- If the couple has any minor children
- If one spouse will continue living in the marital home
- Debts and liabilities of each spouse
- The health of the parties
- If one spouse paused or ended their education or career to further the education or career of the other spouse
- Difficult-to-divide assets, like the ownership of a business by one spouse
- If marital assets were intentionally dissipated or destroyed right after or in anticipation of the divorce filing.
One of the bigger considerations a judge bases his or her decision on when diving marital assets is how well both spouses can support themselves financially. This is most often a consideration in cases where you or your spouse stayed home to raise your children and, as a result, delayed career advancements or went without an earned income for many years.
Note: In Florida, adultery is usually not a consideration of how assets or liabilities are divided unless the couple’s joint finances were used to fund the adulterous relationship (the asset was intentionally dissipated or destroyed by the adulterer).
Dividing the Marital Home and Your Joint Liabilities
If you can’t agree on how to divide ownership of your marital home, a judge steps in and decides for you. In most cases in Florida, a judge will order you to sell your home. This is usually the fairest way to divide the home since both spouses can equally share the amount earned from the sale.
However, If you have children – the judge will likely allow you to keep the home. Just be aware that, as a result, you’ll likely receive less of the total assets than you would have otherwise to make up for it (the judge may also order the home sold once your children reach the age of majority).
Other debt is divided as equally as possible. Then, after the divorce, the debt each spouse is given is their sole responsibility.
Lump-Sum or Installments?
If you have the court decide the division of your assets, then according to Florida Statute 61.075(10):
(a) To do equity between the parties, the court may, in lieu of or to supplement, facilitate, or effectuate the equitable division of marital assets and liabilities, order a monetary payment in a lump sum or in installments paid over a fixed period of time.
(b) If installment payments are ordered, the court may require security and a reasonable rate of interest or may otherwise recognize the time value of the money to be paid in the judgment or order.
(c) This subsection does not preclude the application of chapter 55 to any subsequent default.
You and Your Spouse Can Try to Negotiate a Settlement to Avoid a Court Order
If, after some negotiation, you and your spouse can find enough common ground to agree to a settlement, you’ll avoid a judge making your asset division decisions for you. A marital settlement agreement lets you divide your marital assets in whatever way works best for you both.
What Should you do?
Don’t negotiate a marital settlement agreement without your divorce lawyer by your side. Family law in Florida can quickly become complicated. A lawyer advocating on your behalf will make sure that the agreement is in your best interest.
Contact us today for a free family law case evaluation. We’ll answer your questions and explain your rights. When you’re ready to work with an experienced Florida family law attorney to help with dividing marital assets, please fill out the form on our Contact Us page or give us a call at (954) 880-1302.