Florida Divorce Property Laws

By Beverly Bird

Florida law “presumes” that the fairest way to end a marriage is to give each spouse 50 percent of the property acquired while they were together. That doesn’t necessarily mean this will happen, however. It means a judge will begin deciding property distribution with the assumption that he’ll give half to each spouse. However, because Florida is an equitable distribution state, a judge may then take other factors into consideration, and those factors might result in something closer to a 60/40 split.

Florida law “presumes” that the fairest way to end a marriage is to give each spouse 50 percent of the property acquired while they were together. That doesn’t necessarily mean this will happen, however. It means a judge will begin deciding property distribution with the assumption that he’ll give half to each spouse. However, because Florida is an equitable distribution state, a judge may then take other factors into consideration, and those factors might result in something closer to a 60/40 split.

Equitable Division

When deciding how to divide property, a Florida judge will set aside anything you owned before you married and anything gifted specifically to you during the marriage as separate property. An inheritance or an investment turned over to you from your parents is your separate property, as long as you never put it in joint names or joint accounts. What’s left is subject to a 50/50 split if no extenuating circumstances apply. For example, if your spouse planned the divorce, began selling off assets, and squirreled the cash away in an account in his sole name or that of his mother, a judge might well award you more than 50 percent of the remaining assets to compensate for that. If you historically refused to work and your spouse purchased all marital assets with his own income, he might receive more than half of them at the time of the divorce. Generally, a judge won’t stray very far from a 50/50 split.

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Marital Home

Your house may be an exception to Florida’s 50/50 premise. If you have children, Florida judges tend to avoid uprooting them from their home, so if you’re the custodial parent, you could at least end up with exclusive possession of it until your children are grown. A judge might allow you slightly more than 50 percent of all property to award you the equity in the home, or he might split the equity in the home evenly but defer its sale until your children have left the nest.

Partial Distribution

In October 2008, Florida passed a new equitable distribution statute that allows spouses to transfer title to some assets before their divorce is final. A judge might order this if one spouse has inadequate money to hire an attorney. Even if this does not occur, Florida courts will not consider any alimony award until a judge has divvied up marital property and assigned it to one spouse or the other.

Division by Agreement

Florida’s property division laws become irrelevant if you and your spouse make an agreement as to how you’re going to separate your marital assets. Florida courts have held that a prenuptial agreement is a contract between two individuals that supersedes state law, and the state also recognizes marital settlement agreements when you divorce, even if you never signed a prenuptial agreement. You have the right to decide between you who is going to get what, and the state will not interfere with that unless your agreement is grossly unfair.

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Can a Wife Take Assets in a Divorce That Were Owned by the Husband Prior to the Marriage in Ohio?

References

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Divorce & Equitable Distribution

If you and your spouse are facing divorce, you know the court is going to divide up the assets and debts you've acquired together over the years. Depending on where you live, this can happen in one of two ways. Some states divide everything 50/50. However, the majority make the division based on a legal concept called "equitable distribution."

What Are the Elements of Dissipation of Assets in a Divorce in Florida?

Some people take “divorce planning” to an extreme. It’s one thing for a spouse to begin collecting copies of financial documents because he knows he’s going to need them when he files for divorce. It’s something else entirely if he begins transferring assets out of the marital estate so a court can’t award half of them to his partner. The marital estate is everything spouses acquire together while they’re married. Whether a spouse dissipates these assets intentionally, or whether he spends marital money on his paramour in the course of having an extramarital affair, divorce courts in Florida take a dim view of it.

What Assets Are Protected From Divorce Settlements?

Divorce courts in all states recognize that some property is solely yours, immune from distribution in a divorce. If you must go to trial where a judge will divide marital property for you, the law protects these assets. If you and your spouse negotiate a settlement, you can usually do anything you like with your property and the court will approve your agreement. If you want to follow the letter of the law when you create your settlement agreement, several rules determine what constitutes separate, protected property.

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