How is Division of Property Decided in Florida?

When going through a divorce in Florida, one of the most significant and often contentious issues to resolve is the division of property. Florida follows specific laws and principles that dictate how property is divided between spouses.

This process can be complex, especially when there are substantial assets involved. Consulting a Florida family lawyer can help understand Florida’s approach to property division is essential to ensure that your rights are protected during this difficult time.

1. Florida is an Equitable Distribution State

Florida is an equitable distribution state, which means that the courts aim to divide marital property in a way that is fair, but not necessarily equal. Unlike community property states, where property is typically divided 50/50, Florida gives the judge discretion to determine what is fair based on several factors. This means that a judge may award a larger portion of the property to one spouse if it’s justified by the circumstances.

2. Types of Property in Florida Divorce

In Florida, property is categorized into two primary types: marital property and non-marital property. The division of property begins with identifying and classifying what belongs to each category.

Marital Property

Marital property includes all assets and debts acquired during the marriage, regardless of who holds title to them. Examples of marital property include:

• Homes, vehicles, and personal property.
• Income earned during the marriage.
• Retirement accounts, pensions, and other benefits accrued during the marriage.

Non-Marital Property

Non-marital property includes assets that one spouse acquired before the marriage or through gifts or inheritances during the marriage. This property typically remains with the spouse who owns it and is not divided in a divorce. Examples of non-marital property include:

• Assets acquired by one spouse before marriage.
• Inheritances or gifts received by one spouse during the marriage.
• Property excluded by a prenuptial agreement.

Determining whether an asset is marital or non-marital is crucial, as only marital property is subject to division.

3. Factors the Court Considers in Division

When dividing property, Florida courts consider several factors to ensure a fair distribution. The most common factors include:

Length of the Marriage

The duration of the marriage plays a role in how property is divided. For marriages that lasted a long time, the court is more likely to award a more equal division of property. In shorter marriages, one spouse may be entitled to less.

Contributions to the Marriage

Both financial and non-financial contributions are considered. For example, if one spouse stayed at home to raise children while the other worked, the homemaker’s contributions will be factored in when dividing property.

Economic Circumstances

The court will evaluate the financial circumstances of each spouse, including their ability to support themselves post-divorce. A spouse who is less financially stable may receive a larger portion of the marital assets to help them maintain a reasonable standard of living.

Assets and Debts

The court will consider both the marital assets and debts, ensuring that the division is fair based on the total value of the property and the liabilities attached to it.

Wasteful Dissipation

If one spouse has squandered marital assets (e.g., gambling, extravagant spending), the court may adjust the property division to compensate for this behavior.

Any Other Relevant Factors

Other factors may include the spouses’ ages, health, and the needs of any children. Each case is unique, and the court will assess what is most equitable in the context of the specific situation.

4. The Role of a Marital Settlement Agreement

In many cases, spouses can avoid going to trial by negotiating a Marital Settlement Agreement (MSA). An MSA is a legally binding contract that outlines how property, debts, and other aspects of the divorce (such as child custody) will be handled.

If both spouses agree on how to divide their property, this agreement can be submitted to the court for approval. If the court finds it to be fair and in line with the law, it will be incorporated into the final divorce decree.

5. How the Court Divides Property in Florida

If the spouses cannot reach an agreement, the court will decide how to divide their property. The process involves several steps:

1. Identification of Assets and Liabilities: Both spouses are required to disclose all of their assets and debts, including bank accounts, real estate, retirement accounts, and any other property.
2. Valuation of Property: The court will assign values to all marital assets, which may involve hiring experts, such as appraisers or accountants, to determine the fair market value of properties, businesses, or retirement accounts.
3. Equitable Distribution: Based on the factors mentioned earlier, the judge will make an order to divide the assets and debts in a way that is fair to both parties. This may not mean a 50/50 split but will take into account each spouse’s needs, contributions, and future financial stability.

6. Common Issues in Property Division

There are several common issues that arise during the property division process in Florida:

Business Ownership

If one or both spouses own a business, determining its value and whether it will be divided can be complicated. The court may require a professional valuation to determine the business’s worth, and the spouse who does not own the business may be entitled to compensation.

Retirement and Pension Plans

Florida law allows for the division of retirement benefits, pensions, and other deferred compensation plans. These assets require specific legal procedures to ensure they are divided correctly, often using a Qualified Domestic Relations Order (QDRO) for retirement accounts.

Real Estate and Real Property

Real estate is often one of the largest assets in a divorce. The court will decide whether the family home will be sold, one spouse will buy out the other, or if it will be divided in some other way.

Hidden Assets

If one spouse suspects that the other is hiding assets, they may need to engage in discovery procedures to uncover hidden or undervalued property. This can include subpoenaing financial records, hiring forensic accountants, or conducting depositions.

7. Special Considerations for High Net-Worth Divorces

In high net-worth divorces, property division becomes more complex due to the size and diversity of assets. This can include multiple properties, investment portfolios, business interests, and retirement accounts. To ensure a fair division, both parties may need to hire forensic accountants, business valuation experts, or financial planners to identify and appraise assets.

8. What Happens if You Disagree?

If spouses cannot agree on how to divide property, the case will go to court. The court will hold hearings to determine how the property should be divided based on the law and the circumstances. In some cases, spouses can resolve property disputes through alternative methods like mediation or arbitration, which can be less adversarial and more cost-effective.

FAQs

1. What is the difference between marital and non-marital property?

Marital property includes assets and debts acquired during the marriage, while non-marital property consists of assets owned before the marriage or acquired through gifts or inheritances.

2. Does Florida always divide property 50/50 in a divorce?

No. Florida uses equitable distribution, which means property is divided fairly, but not always equally, depending on various factors like the length of the marriage and each spouse’s contributions.

3. Can a spouse’s inheritance be divided in a Florida divorce?

Generally, inheritance is considered non-marital property and is not divided. However, if the inheritance was commingled with marital property, it may be subject to division.

4. How can I protect my property during a divorce in Florida?

Consulting with an attorney and possibly creating a prenuptial or postnuptial agreement can help protect your assets. Keeping records of non-marital property and ensuring it remains separate is also important.

5. What happens if one spouse is hiding assets during the divorce?

The court may impose penalties, and the innocent spouse may be entitled to a larger portion of the property. Discovery procedures can be used to uncover hidden assets.

6. Can we agree on how to divide our property without going to court?

Yes, through a Marital Settlement Agreement, spouses can negotiate and agree on property division without needing to go to trial.

7. How are retirement accounts divided in a Florida divorce?

Retirement accounts, including pensions and 401(k) plans, are subject to division. A Qualified Domestic Relations Order (QDRO) is often used to ensure the proper division.

8. What happens to the family home in a Florida divorce?

The family home may be sold, or one spouse may buy out the other’s share. In some cases, it may be retained by one spouse, especially if it’s in the best interests of children.

Conclusion

Understanding how property is divided in Florida can help ensure that you are adequately prepared for a divorce. With its equitable distribution laws, Florida aims to provide a fair outcome, but each case is unique. If you are facing a divorce, it’s important to seek legal guidance to protect your interests and navigate the property division process.