Dividing Marital Property
Dividing Marital Property
In a Florida divorce, the old adage of "What is mine is yours, and what is yours is mine” rings pretty true. When you marry in the State of Florida, the assets and liabilities you bring with you to the marriage are, in most cases, considered non-marital assets. In other words, non-marital assets are possessions of the individual and not owned jointly by the individual parties. However, assets and debts acquired during the marriage are considered joint marital property.Florida Statute 61.075
The Florida divorce and family law courts are instructed to equally divide marital assets and debts between the spouses, unless the court can justify an unequal distribution based on factors, including:
- Contributions made to the marriage
- Economic circumstances
- Duration of the marriage
- Interruption of personal careers or educational opportunities
- Contributions made by one party to the career or education of the other
- Desire to retain an asset such as business interest
- Contributions made to or liabilities incurred to both the marital and non-marital assets
- Desire to retain the marital home as residence for a child of the marriage or other party
- Intentional depletion, waste or destruction of assets after a petition of divorce or within 2 years of the filing of such petition
- Or any other factors necessary to do justice and equality between the parties.
Florida law prescribes that in any contested action, the distribution of marital assets and liabilities shall include written findings presented to the court, including:
- Identification of all nonmarital assets and individual ownership interests
- Specific identification of the marital assets
- Valuations of “significant assets” designating which party shall be entitled to each asset
The law also establishes rules governing additional assets and liabilities, including:
All assets and liabilities acquired or incurred by either party or jointly acquired during the marriage, including inter spousal gifts, vested and non-vested benefits, rights, funds, pensions, profit-sharing, annuity, deferred compensation, and insurance plans are considered marital assets. Additionally, all real property held as tenants, acquired before or during the marriage, are also marital assets.
Nonmarital assets and liabilities include pre-marital acquisitions by either party, including gifts, bequests, income (unless the income was treated by the parties as a marital asset), or any written agreement between the parties.Equal Division of Assets and Debt
In most cases, the intent of the law is to give 50 percent to the husband and 50 percent to the wife. If one party takes more debt, they may also be given more in assets to equal it all out. The distribution of property can be challenging for spouses because there are items they may both want, or they may feel the spouse is solely responsible for the debt in their name. However, if it became debt during the marriage, the name associated with the debt does not necessarily mean that is where the debt will remain.
In some cases, the courts may deviate from the equal division of assets and debts, but there has to be a substantial and proven reason why it should be unequally split. In cases where there is proof that one spouse used marital funds to have a relationship outside of the marriage, the other spouse is entitled to recover 50 percent of what was used to further the relationship. For example, if Hank had an affair and spent $500 on his mistress, then Wilma is entitled to recover $250 from Hank. This may come out through a division of bank accounts, debts, or any other way that replenishes the funds to Wilma.
Equitable distribution may not seem fair to some individuals, but the fact remains that it was accumulated for the benefit of husband and wife, and it shall be divided equitably.
Dividing Marital Property: Frequently Asked Questions
Is My Home a Marital Asset? (1/11/11)
Asset protection and disclosure of liabilities are complicated issues that need to be negotiated and resolved by experience legal minds. Michael, David and Jennifer have extensive knowledge and experience in both mediating and presenting documentation, providing the court with a clear understanding of the issues of marital assets and liabilities represented in the marriage. We take special care in every legal matter that we defend, and every client deserves our full attention and expertise until the legal disputes are settled. Contact our Jacksonville Family Law office at (904) 355-8888 to discuss your case and answer any questions that you may have. Resolving legal disputes and creating satisfied clients is what we do.