Divorce and Property Division: Who Gets What in Florida?

By Jarbath Pena Law Group

When a marriage ends, one of the most pressing and emotionally charged questions is: Who gets what? Dividing assets and debts can quickly become a source of conflict and uncertainty. In Florida, this process is governed by the principle of equitable distribution, a legal framework designed to reach a fair—though not always equal—outcome.

Understanding how equitable distribution works is a critical first step toward protecting your financial future. Below, we explain how Florida courts divide property in a divorce, what qualifies as marital versus non-marital property, and the factors judges consider when determining a fair division.

Florida’s Equitable Distribution Framework

Florida is an equitable distribution state. This means that the court will divide all marital assets and liabilities between the spouses in a way that it deems fair. The process begins with a three-step analysis:

Courts follow a three-step process:

1. Identify all assets and liabilities and classify them as marital or non-marital.

2. Value each marital asset and liability.

3. Distribute the marital estate equitably between the spouses.

The court starts with the presumption that an equal, 50/50 split is equitable. However, a judge can order an unequal distribution if there is a legally sound justification based on a specific set of statutory factors.

Marital vs. Non-Marital Property

This distinction is the foundation of property division. Only marital property and marital debts are subject to division by the court. Non-marital property, also known as separate property, remains with the spouse who owns it.

What is Marital Property or Marital Liabilities?

Marital property generally includes all assets and debts acquired or earned by either spouse during the marriage. It doesn't matter whose name is on the title or who earned the money to buy it. If it was acquired between the date of marriage and the date of filing for divorce, it is typically considered marital.

Common examples of marital property include:

• The Marital Home: The house the couple acquired during the marriage, irrespective of title, or if the property is jointly titled.

• Bank Accounts: Money in checking and savings accounts accumulated during the marriage, irrespective of joint ownership.

• Retirement Accounts: The portion of pensions, 401(k)s, or IRAs that was earned during the marriage.

• Investments: Stocks, bonds, and mutual funds purchased during the marriage.

• Vehicles, Boats, and other Personal Property: Items bought while married.

• Business Interests: A business started or grown during the marriage.

• Debts: Mortgages, student loans, car loans, and credit card debt incurred during the marriage, no matter who incurred that debt.

An important concept is the "appreciation" of non-marital assets. If a non-marital asset (like a house owned before the marriage) increases in value due to the use of marital funds (i.e. income earned by either party during the marriage) or marital efforts (the efforts of either spouse) that increase in value is considered a marital asset.

What is Non-Marital Property?

Non-marital property & debt is generally not subject to division. This includes:

• Assets and debts acquired by either spouse before the marriage.

• Inheritances or gifts given to one spouse individually, even if received during the marriage.

• Assets and liabilities that are specifically excluded by a valid prenuptial or postnuptial agreement.

• Income derived from non-marital assets, unless that income was treated as a marital asset (e.g., deposited into a joint account).

• Loans or debts obtained prior to marriage

It is crucial to keep non-marital assets separate. If you "commingle" a non-marital asset—for example, by depositing inheritance money into a joint bank account where it mixes with marital funds—it may lose its non-marital status and become subject to division.

Finally, just because a non-marital asset remains non marital, the appreciation, or growth in value of that property can still be considered marital. So for the examples above, there may be a portion of that asset, that is considered marital, even though the asset itself is not marital.

Factors That Influence Equitable Distribution

When deciding if a 50/50 split is fair, a Florida judge will consider a long list of factors outlined in Florida Statute 61.075. These factors allow the court to tailor the division to the unique circumstances of the family.

Some of the key factors include:

• Each Spouse’s Contribution to the Marriage: This includes financial contributions as well as contributions as a homemaker, parent, or caregiver. The law recognizes that non-financial contributions have real value. The cost of a nanny, chef or house cleaner is saved when a party takes on that role.

• The Economic Circumstances of the Parties: The court looks at the financial situation of each spouse after the divorce, and they are allowed to look at the full picture, including non-marital assets such as inheritances, to reach an equitable/fair solution.

• The Duration of the Marriage: A long-term marriage might warrant a different distribution approach than a short-term one. (Short term marriage is less than10 years, a moderate term marriage is 10 to 20 years and finally, a long term marriage is 20 years and above.)

• Each Spouse's Career and Education Sacrifices: If one spouse interrupted their career or education to support the other's advancement or to care for the children, the court can take this into account.

• The Desirability of Retaining an Asset Intact: This often applies to a family business, where dividing it would destroy its value.

• Contribution to the Other Spouse's Education or Career: If one spouse helped the other obtain a degree or professional license, this may be considered.

• The Desirability of the Marital Home for the Children: The court may grant the custodial parent exclusive use of the marital home for a period of time (while the children are minors) for the benefit of the children.

• Misconduct or Waste of Marital Assets: If one spouse intentionally wasted or destroyed marital assets (e.g., spending on an affair) after filing, or within two years of the divorce filing, the court can compensate the other spouse.

  
  

Practical Tips for Protecting Yourself

The property division process can be overwhelming. Here are some practical steps to help you prepare.

1. Gather Financial Documents: Start collecting all relevant financial records. This includes tax returns, bank statements, deeds, loan documents, pay stubs, and retirement account statements.

2. Create an Inventory: Make a list of all your assets and debts, both joint and individual. Note when each was acquired and your best estimate of its current value.

3. Understand Your Finances: Take the time to understand your complete financial picture. If your spouse handled all the finances, now is the time to get educated.

4. Do Not Hide Assets: Attempting to hide assets is illegal and will severely damage your credibility with the court. Full and honest financial disclosure is required by law.

5. Consult an Attorney Early: Do not wait until you are deep in negotiations to seek legal advice. An experienced attorney can help you understand your rights, identify marital versus non-marital property, and develop a strategy to achieve a fair outcome.

   
   

How Jarbath Pena Law Group Can Help

Property division is one of the most financially significant parts of a divorce. The decisions made during this process will have a lasting impact on your future stability. Navigating the legal complexities of equitable distribution requires skill, experience, and a meticulous approach.

The attorneys at Jarbath Pena Law Group are dedicated to protecting our clients' financial interests. We will work with you to:

• Conduct a thorough financial analysis to identify and value all marital assets and debts.

• Trace assets to distinguish between marital and non-marital property.

• Advocate for a fair and just distribution based on the specific factors in your case.

• Negotiate a comprehensive settlement or vigorously represent your interests in court.

You do not have to face this complex process alone. We are here to provide the expert legal guidance you need to secure a fair settlement and move forward with confidence.

If you are facing a divorce and have questions about property division, contact Jarbath Pena Law Group today. Call us at 305-615-1005 or visit our website at www.jp-lawgroup.com to schedule a consultation.