Dividing Property and Assets in a Divorce
Property division is one of the biggest issue in any Florida divorce. Hopefully, spouses are able to negotiate and reach an agreement, then submit a property settlement to be ratified by the court. But if a couple cannot come to an out-of-court agreement, a judge will divide the couple’s property. Florida uses the principles of equitable distribution to determine a fair property settlement.
Ideally, spouses seeking a divorce will be able to agree upon a mutually acceptable property settlement. Such an agreement can be reached before a dissolution action iI filed or during its pendency. Often, a third party mediator assists the parties in reaching such an agreement. Once a settlement agreement is signed, it is submitted to the court for approval. After the court ratifies the agreement, it becomes a legally enforceable court order and usually incorporated into the final judgment of dissolution.
This method of dividing property is preferable to having a judge make the determination for several reasons. One major reason is that it is less expensive, as there are fewer court costs, and lawyers do not have to spend time preparing for litigation. Further, the outcome of a negotiated property settlement is generally preferable to a court’s decision, as the spouses can retain control over the division and are not forced to accept a distribution that may be undesirable.
Equitable means just, not equal. Thus, property division in equitable distribution will not necessarily be a 50/50 split. In determining a fair division of property, the court considers several factors, including:
- The time when the property was acquired;
- Whether there has been an unequal contribution to the value of the asset and its appreciation, justifying an unequal distribution;
- Any intentional dissipation or waste of the couple’s assets during the past two years; and
- Any other factors necessary to do equity and justice between the spouses.
Marital and Nonmarital Property
Under Florida’s divorce laws, there are two types of property: marital and nonmarital. The court will usually only divide marital assets and liabilities in a divorce.
Nonmarital property belongs to one spouse alone. It may include:
- Property owned by one spouse before the marriage;
- Gifts or inheritances given to one spouse only;
- Income earned from nonmarital property, unless the couple treated the income as marital property;
- Any assets or debts that the spouses have set forth in writing as being nonmarital; and
- Any debts incurred when one spouse forged the other’s signature.
Marital property belongs to both spouses equally. It includes:
- Any assets or liabilities acquired during the marriage, whether by one spouse’s efforts alone or by both;
- Any increases in the value of nonmarital property resulting from the efforts of either spouse during the marriage, or by the use of marital funds;
- Gifts given by one spouse to the other, during the marriage; and
- Any property that the spouses own together, such as a home, business, or car.
If you are considering a divorce in the Florida Keys, please contact a family law attorney at the Silver Law Group for an initial consultation.