The division of property in a divorce agreement is often the most contentious part of the divorce proceedings, especially if there are no children involved. Spouses always want to know who gets the house, car, boat, and other large items. There is no one-size-fits-all for dividing costly assets—every divorce is different—but there are general guidelines for determining which assets are to be divided and how judges go about making these determinations in contested divorces.
Difference Between Marital and Separate Property
In the early stages of a divorce, you must begin taking an inventory of every single item you and your spouse own. Every asset and piece of property is designated as either “marital” or “separate” property. Marital property is everything that was acquired by either you or your spouse during your marriage. Marital property includes not only physical assets but also retirement accounts, business interests, and debts acquired during the marriage. In a marriage, it is assumed that nearly everything is shared, so most of the assets you inventory will be considered marital property.
However, some assets will be designated as separate property. Items that you acquired before your marriage and were used exclusively by you are likely to be considered separate property. Additionally, some things you acquire during your marriage may be considered separate property, such as gifts or inheritances given to you by blood relatives.
An important note regarding marital and separate property is that some assets can transform into marital property. For example, a bank account that you owned before you married your current spouse could become “commingled” if your spouse makes contributions to it. Separate property can lose its status if it’s commingled or actively managed using marital funds, or if both spouses contribute to its maintenance or improvement.
What Does “Fair & Equitable” Mean?
If you and your spouse cannot come to an agreement regarding division of all property, then it is generally up to the judge to come up with a decision. Some states mandate that, with few exceptions, property is to be equally divided, 50/50. Florida is not among these states; instead, Florida judges are guided by the “fair and equitable” legal doctrine. This means that judges have discretion when dividing marital property but must distribute assets in a fair and equitable manner. This does not always mean a clean 50/50 division.
Some of the factors a judge might take into consideration when dividing property during your divorce include:
Length of your marriage
- Needs of your children (especially when considering living situations)
- The earning potential of you and your spouse
- Contributions of both you and your spouse to the marital home
- Interruptions of educational or career opportunities during your marriage
- Intentional waste or dissipation of marital assets by either spouse (such as excessive spending during the divorce process)
Conclusion
If a judge has been tasked with dividing your marital property between you and your spouse, you need an attorney who understands the applicable laws so you are treated fairly with the divorce agreement. Florida courts presume an equal distribution is fair unless there’s justification for an unequal split based on the factors mentioned above. The Divorce and Mediation Law Firm would be honored to represent you in and out of family court. Call our firm at (954)-447-2580 for a confidential consultation today.
