Any Floridian facing divorce should speak with an experienced family lawyer to understand how a state court judge is likely to approach property division in the particular marriage if the issue comes before the court. With that understanding as a backdrop, the parties will often negotiate a settlement agreement themselves that includes the terms of property and debt division.
(Property division can also be impacted in divorce if it was dealt with earlier in a valid premarital, also known as a prenuptial agreement or prenup for short, or a postmarital agreement between the parties.)
If the parties do not settle the question in negotiation and the issue ends up before the judge, he or she has to apply state law, which will be summarized here.
Marital versus nonmarital property
The first crucial question is the classification under Florida law of each asset and each debt as marital or nonmarital. Marital property and liabilities are those incurred during the marriage, by either spouse alone or jointly, including wages earned by either while married, even if they were deposited into an account that was not jointly owned.
Broadly, marital property and debt are subject to equitable distribution, which means equally divided unless unequal distribution is justified considering all factors relevant to create equity and justice between the parties, including specific things listed in the statute like contributions to the marriage like care of children and homemaking, marriage duration, recent destruction of assets and others.
Nonmarital property and debts that belong to just one spouse will be assigned to that person alone to keep after the divorce is final. These are defined as those acquired by a person before marriage or received separately as a gift or inheritance (or exchanged for such assets).
Sounds simple enough, but in practice, property classification can become a highly contested issue, because the law and cases interpreting it are complicated and full of exceptions.
For example, nonmarital funds or income from a nonmarital asset generated during the marriage usually stays nonmarital, unless it was treated as a marital asset, such as by depositing it into a joint account with other marital funds and using the commingled funds for marital expenditures. In this situation, the court may consider the deposited nonmarital asset to have been an interspousal gift that changed its classification to marital.
If a nonmarital asset increases in value during the marriage, the amount of that increase could become marital if the enhancement is because of the efforts of either or both spouses or by the expenditure of marital money. For purposes of determining equitable distribution, the judge would have to decide the amount of the increase in value, which would then be marital and subject to division, from the original part that remains nonmarital and the property of the separate owner.
Valuation matters too
Once assets are characterized as marital or nonmarital, the court must assign a value to each one. Each party may submit evidence such as appraisals or other professional value assessments for the judge’s consideration, which can be difficult especially with complex assets like foreign property, stocks and bonds, executive perks, professional practices, family businesses, retirement accounts like pensions, investments, antiques and collectibles, and other similar kinds of property.
Once values are established, the judge will make the equal division of property between the spouses (or unequal if that is found to be more equitable and just.)
This blog scratches the surface of a highly complex and sometimes adversarial issue in Florida divorce. An attorney can answer questions specific to the property and debt of a particular marriage.