The general rule is that Florida is an “Equitable Distribution” state, and marital property will be divided equally between the parties upon divorce. Marital property includes assets and liabilities acquired during the marriage. Such property is considered marital property regardless of whose name is on the title of the property. If the property is acquired during a marriage with marital income or funds, those are marital assets.
Examples of marital assets include:
- Real property held as tenants by the entirety;
- Personal property held as tenants by the entirety;
- Gifts from one spouse to another;
- Insurance benefits acquired during the marriage;
- Any appreciation or enhancement in the value of non-marital assets;
- Retirement accounts established and/or contributed to during the marriage;
- Pension benefits, workers’ compensation benefits, social security income, interests in pending lawsuits, and stock options acquired during the marriage.
In summary, assets include any real estate, bank accounts, retirement accounts, stock options, businesses and business interests, and tangible personal property (such as jewelry, boats, automobiles, and even pets).
Liabilities include any kind of debt such as a mortgage, credit card debt, automobile loans, tax liens, etc.
Non-marital property is assets and liabilities acquired BEFORE the marriage, and remain the sole and separate property of the spouse upon divorce, with the exception of contributions made during the marriage and equity accrued during the marriage if marital funds are used to increase the value of an asset.
Unless steps are taken to change the title or the value of the property during the marriage, the following types of property are considered non-marital assets:
- Assets or liabilities that a party came into the marriage with that retains its value;
- Assets or liabilities acquired by an exchange for a non-marital asset;
- Assets or liabilities acquired by noninterspousal gift or inheritance;
- Income derived from non-marital assets during the marriage (unless the income was used by the parties as a marital asset);
- Any assets and liabilities excluded from being considered marital property pursuant to a valid written agreement (for example, a valid prenuptial agreement); and
- Any liabilities incurred where one spouse forged the other spouse’s name without permission.
There are instances where non-marital property is converted into marital property. This can occur when the non-marital property is retitled with the addition of the other spouse’s name. This also happens upon the commingling of assets, or the combining of marital and non-marital assets. Generally, this situation occurs when spouses open a joint bank account and add non-marital funds to the account. If retitling or commingling occurs, the entire value of the property is converted into marital property.
A third type of conversion occurs when the value of a non-marital asset is enhanced due to the labor or financial contribution of either spouse during the marriage.
Generally, the presumption is that the property will be divided equally, but the court may allow the marital property to be divided unequally so long as the end result is equal. The Court will utilize the following factors in determining equitable distribution of assets and liabilities:
- The contribution to the marriage by each spouse;
- The economic circumstances of the parties;
- The duration of the marriage;
- Any interruption of personal careers or educational opportunities of either party;
- The contribution of one spouse to the personal career or educational opportunity of the other spouse;
- The desirability of retaining any asset, including an interest in a business or professional practice, intact and free from any claim or interference by the other party;
- The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the martial assets and the non-marital assets of the parties;
- The desirability of retaining the marital home as a residence for any dependent child of the marriage;
- The intentional dissipation, waste, depletion, or destruction of marital assets during the marriage; and
- Any other factors necessary to do equity and justice between the parties.
Courts allow for unequal distribution of marital assets in instances of marital misconduct along with an intentional dissipation of marital assets. These situations can arise in instances where marital funds have been spent on an extramarital affair, were gambled away, or used to support a drug addiction.
It is extremely important to note that equitable distribution cannot be modified.