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.
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.
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.
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.