In every divorce case, courts must decide how to divide the couple’s property. In some divorces, this may be as simple as each spouse taking their own car and splitting financial accounts, while in other cases, it can involve messy divisions of joint assets like retirement accounts and real estate. This article will explain how Florida judges divide property during a divorce.
Florida Is an “Equitable Division” State
Most states fall into one of two categories when it comes to the method of property division. Each state is either an equitable division state or a community property state. Florida is an equitable division state, meaning that courts divide property based on what’s fair under the circumstances, rather than simply dividing everything 50/50.
Marital Property versus Separate Property
Before judges begin the process of dividing property, they first make the distinction between marital property and separate property. Separate property belongs entirely to one spouse, and courts don’t divide it—the judge will award separate property to the owner spouse. Marital property belongs to both spouses, and the court will divide it equitably (which again, doesn’t necessarily mean equal).
Separate property can fall into a couple different categories. First, assets that a spouse owns prior to marriage is that spouse’s separate property. For example, if a husband owns a car outright prior to the date of marriage, the court will award that vehicle to him before dividing any marital property.
Second, if a spouse receives inheritance or gift made specifically to that spouse, that is separate property. To show that a gift was made specifically to you, a card or other written document showing the intent of the gift would be best, but a judge could accept your testimony to prove this as well.
Things become more complicated if an asset is only partially owned at the time of marriage or grows in value during the marriage. For example, if you have a home with significant equity at the time of the marriage, you should get credit for that amount with the right documents and help from an attorney.
Making a claim for separate property on an asset that was partially owned at the time of marriage and/or commingled during the marriage is beyond the scope of this article, but you should start by gathering documents showing the value of the asset at the time of marriage and your interest in it. Bring these documents to an experienced family law attorney for an evaluation of your separate property claim.
Once the court has separated marital property from separate property, the court will value marital property in order to divide it equitably. Some types of assets are easier to value than others. Bank accounts are simple—the value is the amount of cash in the account. With retirement and investment accounts, you may need to account for tax consequences and early withdrawal penalties before comparing them to cash.
It’s typical to get at least one appraisal on any real property owned by the couple, and depending on whether the spouses plan to sell the home or not, they may need to account for broker fees, or refinance costs. With cars, you can either get an appraisal or use Kelly Blue Book or a similar service to come up with resale value.
Businesses are some of the most difficult assets to value. If the business is valuable, it may be worth hiring an expert to perform a formal appraisal. Otherwise, the couple and their attorneys can agree on a method to value the business and use that. If the couple can’t agree on a way to value a business, the divorce might get messy. Different valuation methods can produce wildly different results, making it more likely that the couple will end up in court to resolve the value of a business.
Considerations the Judge or Jury Uses When Dividing your Property
Judges in Florida have wide latitude when determining how to divide property during a divorce. Florida courts are required not to divide a marital estate evenly, but rather fairly. Judges, therefore, are able to consider several factors when dividing your property, including each of the following:
- the length of the marriage
- each spouse’s financial circumstances
- each spouse’s contribution to the marriage, including both financial and non-financial contributions
- whether one spouse gave up career or educational opportunities for the marriage
- whether either spouse intentionally dissipated or destroyed marital assets within two years of the divorce filing
- whether there are assets that are better awarded to one spouse or the other rather than dividing (e.g., a piece of land that is expected to rise in value)
- any debt incurred by either spouse; and,
- whether there’s a need to maintain a marital home for children’s benefit.
If you and your spouse don’t agree on how to divide your marital estate, it’s critical to speak with an experienced family law attorney to gauge how a court may weigh the above factors in your case. Different judges may have different tendencies in specific situations, so a family law attorney who is familiar with your local courts may be best positioned to give you advice.