During your divorce, you and your spouse or the court will need to decide what to do regarding the division of the marital estate. The marital estate will include both assets and liabilities. How property division occurs is dependent on state law and there is some variation between states. While some states follow the “community property” approach, where marital property is assumed to be equally owned and is most often divided in half, Florida follows the “equitable distribution” approach (as do the majority of other states).
How is Property Distributed in a Florida Divorce?
Before property can be distributed, it must first be decided what property is actually marital property. Marital property is considered to be the assets that have been acquired or the liabilities that have been incurred during the course of the marriage. The asset or liability may have been assumed by a spouse individual or jointly. Additionally, the increase in value of a non-marital asset that is the result of efforts of either spouse during the marriage is considered to be marital property as well. Gifts from one spouse to the other, interspousal gifts, given during the marriage would be considered marital property. Additionally, retirement benefits and insurance plans acquired during the marriage, whether vested or not, are considered marital property as well.
Nonmarital assets would include things like assets that were acquired or liabilities incurred by either spouse prior to the marriage. Assets that either spouse acquired separately by something such as a bequest or an inheritance would also be considered non-marital property. There may also be a valid agreement between the spouses to exclude an asset or liability from the marital estate.
Once it is decided what is part of the marital estate, the equitable distribution model will be used to divide everything up. The equitable distribution model is far more nuanced than the community property approach. Pursuant to Florida law, the distribution begins with the premise that the distribution should be equal absent relevant factors that would merit an unequal distribution. This means that the division may not be equal, but will be equitable, or fair. Factors that will be considered in the property division will include:
- Each spouse’s contribution to the marriage
- The income level of each spouse
- Length of the marriage
- Deferred personal careers or educational opportunities of either spouse for things such as raising children
- Contribution of either spouse in acquiring marital assets or incurring marital debt
- Whether keeping the marital home as a residence would be desirable for any children resulting from the marriage
- Whether it would be best to retain an asset intact and free from a claim or interference by the other spouse (such as a business interest)
- Any other factors deemed necessary to do equity and justice.
Protecting Your Best Interest During Divorce Proceedings
Divorce can have a substantial impact on your financial well-being far into the future. Decisions made regarding the distribution of marital property and debt will have a significant impact on your finances. That is why Bernal-Mora & Nickolaou is here to protect your best interests during divorce proceedings. We will be your steadfast advocates throughout the process. Contact us today.