When it comes to dividing property in divorce, the law isn’t the same from one state to the next. In Florida, the couple’s marital property must be divided in an equitable (fair) manner. It is important to understand that “equitable” doesn’t necessarily mean “equal.” Depending on the circumstances, it may be more fair to award one spouse more property than the other, depending on their contribution. As is the case, things are rarely straightforward and predictable.
Before a judge makes a decision regarding property division for a couple that is divorcing, there are many factors that they need to consider regarding who gets what and how much. These include:
- The length of the marriage
- The financial situation of each spouse
- An gap in either spouse’s career or education
- The contribution of each spouse to the marriage, including taking care of the house and the children
- Either spouse’s contribution to the career or education of the other
- Each spouse’s financial contribution to the household
- Each spouse’s contribution to marital and nonmarital assets
- Debts of either spouse, including marital and nonmarital debts
- Destruction of marital and nonmarital assets by either spouse
What if there are assets that cannot be divided?
How difficult it is to divide any given property is another consideration when it comes to property division. If that is the case, the judge can decide one of two ways. They can either give the entire asset (property) to one of the spouses and give assets of equal value to the other spouse or the couple can sell the asset and split the money. When it comes to dividing a marital home, the approach to division might be similar. One spouse may be awarded the house and that spouse may have to buy the other spouse out.
Of course, I big consideration in that case would be which decision is in the best interests of the child. Commonly, the child will live in that home going forward since living there will most likely keep the child’s life even and as secure as possible.
Can my soon-to-be ex-spouse divide our property between us without a judge?
That is entirely possible and it is usually the first step in property division. However, if you are unable to agree on the property division, sometimes it becomes necessary to hand it over to a judge for them to decide on your behalf. There are times when you are not able to decide with your spouse because you are not getting along and other times when it is just too difficult to agree. In either of those cases, you will most likely end up in court.
Marital vs. nonmarital property
There are two types of property that you will be considering when you are going through the divorce process. One is marital property and the other is nonmarital property.
Marital property: Marital property is property that you acquired together after the marriage started. Both marital property and marital debts are subject to division when you divorce. Some examples of marital property are retirement benefits such as IRAs, pensions and 401(k)s, stocks that are vested and nonvested, annuities, profit-sharing benefits, compensation that has been deferred and insurance plans.
Nonmarital property: This is separate property that is owned by one spouse or the other and was owned before the marriage began. Some examples of separate property are assets and debts that either spouse took on before they were married. It may be defined in a prenuptial agreement as separate property, income that comes from separate property and possessions that were purchased with money from separate property.
What happens if the separate property value increases during the marriage?
If marital funds were used to contribute in some way to the separate property and the separate property’s value increases as a result, the increase in value is considered marital property. The original value will remain as separate property but the difference in the value will be considered as marital property. There are some instances in which marital and separate property are mixed. In that case, it is considered to be “comingled.” If the couple attempts to divide comingled property and is unsuccessful, it will be up to the judge to decide how it should be divided.
How do I protect my rights during property division?
How your property is divided in the divorce may have a profound, permanent effect on everyone involved. It may affect you emotionally and financially to a great extent. No matter what happens and no matter how the property is divided, it is important that your rights are protected at all times. This is important for the present as well as the future.