Division of Property and what is “Marital Property”?

In a Florida divorce, only “marital property” is subject to equitable division.  Simply put, marital property is property acquired during the marriage from the effort of one or both spouses.  It does not matter which spouse earned the money, nor the name is on the title.  Keep in mind, however, this is only for division of property and debts.  A court can award non-marital property to the other spouse in rare circumstances if the facts allow for it.

Marital property is not inheritance or a gift received by one spouse, as this is not earned from the effort of one or both spouses.  This is usually from that spouses’ parent or other relative.  However, a joint gift would be subject to equitable distribution in a divorce.

Also, if something is owned prior to the marriage it is usually considered non-marital, and thus, not subject to equitable division.  However, it can become marital if the owner spouse adds the other spouses name or it is “comingled” by adding a marital asset to it.  This could happen, for instance, if you put your inheritance into a joint checking account.

Florida divorce law also uses “Equitable division”.  For the most part this is “equal division”, but not exactly.

There are exceptions to equally dividing marital property.  For the most part, a Husband and Wife will equally divide all of their marital assets.  This even includes individually titled assets like retirement, cars, or even real estate.

However, we don’t simply liquidate everything in a divorce then divide it down the middle.  If the parties own a house worth $250,000.00 with a $100,000 mortgage and the Wife has an IRA worth $150,000.00, the court can award the house to the Husband with responsibility for the debt thereon, and let the Wife keep her whole pension.  Not every case is this clean, so a partial transfer of an asset can allow a similar outcome in your divorce..

Also keep in mind that debts are divided the same way.  One scenario I often see is when one spouse owns real estate prior to the marriage and keeps it in their own name.  If the parties stay married a long time, and pay down the note against the house (i.e. the mortgage) this can create an issue.  Usually, the spouse who is not on the deed will not gain any interest in the real estate unless there were substantial improvements to the house.  But, that spouse may have an interest in the amount the mortgage was reduced during the marriage.  This is a way that the other spouse can gain an “asset”.

How to give an asset a value can also present issues in a divorce.  Certain assets, like a business, are hard to value.  These are not limited to how much the inventory, vehicles, and buildings are worth, but other value the business may have.  Business may have value beyond the real, countable assets it owns.  Debt owned by the business can also reduce its value.

Few assets stay the same value during a marriage.  The date used to value assets or debts is one of several potential dates.  One is when the Divorce is filed with the clerk.   Another is the date the parties stop living together.   The Court can also use a date that it finds to be equitable or “fair”, given the unique circumstances surrounding the divorce.

Property division is the most common issue in a divorce.  It is often more predictable than other issues like time sharing or alimony.  It can be simple if there are few assets, or complicated if a married couple owns significant property.  You should consult with an attorney even if the parties are in agreement.  An attorney will know the proper way to divide assets and debts to best protect a spouses interest.  This is especially true in cases with real estate, retirement or other significant assets.