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Choosing who gets to keep what is one of the most important aspects of any divorce. Most married couples collect a wide range of assets over the course of their lives together, and deciding how to divide that property can be incredibly challenging. Who will inherit the house? Who gets to keep the expensive items? Who gets the car?
Property distribution disagreements can lead to a bitter divorce, so anyone seeking a divorce in Florida must understand how the process works. And let’s be honest, it can be even more troublesome than usual when the couple loathes each other.
However, it is always better to involve a mediator when it comes to divorce rather than going to court. It is essential to understand that every divorce is different, and you should always attain advice about the specifics of your divorce and property division to minimize conflict.
Read further to educate yourself on the divorce laws in Florida related to property division so that you are not blindsided during your divorce hearings. Let’s start our Florida divorce: dividing property guide.
When a married couple goes to court and files for divorce in Florida, the division of marital assets and obligations is known as “equitable distribution.” Unless there are conditions that make an equal distribution inequitable, in most cases, the court will usually split marital assets and liabilities 50/50.
However, determining whether the debt or asset is marital or separate property is usually the first step. Only debt and marital property are subject to equitable partition by a court.
This means that although the divide starts at a ratio of 50/50, more rules are applied to determine the equitability of the assets to ensure that no injustice takes place. Of course, the first stage in dividing property is for the court to identify what is and is not marital property. This is not an easy task and can lead to many conflicts. Instead, Florida statutes instruct courts on determining whether a given asset or property is marital or non-marital. Since Florida courts and judges have so much discretion in determining what is fair, the phrase “advice” is employed.
The court may give one spouse the house in exchange for the sale of the other spouse’s share of the property. A judge may even force the couple to sell their house and divide the revenues.
However, there are several options for dividing a home fairly. Florida divides assets according to their value as an equitable distribution state. As a result, you must first have your home’s value analyzed before deciding how to divide it. You have a few alternatives after this:
If you have children, the parent who spends the most time with them should get the house if it is financially feasible. This serves the children’s best interests as they will not have to move or change schools.
When it comes to divorce in Florida, the court mostly thinks about the survival of the kids, which is one of the important parts of a divorce.
Couples can agree to sell their house to each other. If one spouse wants to keep the residence, they have the option to buy the other spouse’s equitable portion (40-50 percent of the assessed value).
If the couple cannot reach a middle ground about who gets the house, the only choice is to sell the house and divide the money evenly amongst both parties.
Sometimes, if one spouse keeps the house, the mortgage may still be in the other’s name. The spouse who owns the house must refinance it into their name to avoid this.
However, refinancing is not always possible in today’s economic situation, and it is preferable to hire a lawyer and qualified mediator to handle the division of your family home in these circumstances. An attorney can assist with the division. Depending on the choice you and your former spouse choose, a mediator can help you remove duty from one spouse, perform a buyout, or just sell and share the earnings as a form of conflict resolution.
What counts as marital property and what qualifies as separate, the nonmarital property will have a substantial impact on the division of assets between you and your spouse, and thus it is crucial to understand the difference between the two.
Property obtained during a marriage is typically considered marital property. It makes no difference whether one or both spouses bought the property or asset. For example, if a husband buys a classic car for his wife during their marriage, it will be deemed marital property.
The property is deemed a marital asset if the parties hold it as tenants in the entirety. A tenant by the entirety is a type of property ownership available only to married couples. To be treated as tenants by the entirety:
For married couples, a tenant by the entireties provides some protections and benefits; nonetheless, ownership of a property this way will allow the court to deduce that the property is a marital asset. In case, one spouse wishes for the court to handle the property differently in a divorce, he or she must prove that the presumption is false and that the property is a distinct, non-marital property.
According to the statute, any benefits, rights, or cash obtained during the marriage in any sort of retirement or insurance plan shall be considered marital property.
For example, assume one of the spouses works for a company that offers a 500(k) plan, and He/she had accumulated $10,000.00 in a 500k plan before the marriage. Before he and the spouse split, he added another $25,000 to his retirement plan after marriage. Since the $10,000 was obtained prior to the marriage, it will be considered non-marital property, while the $25,000 would be considered marital property. In the majority of divorce situations, retirement plans are divided.
When one spouse presents a gift to the other, the gift is considered marital property. Assume that the husband gifts his wife a painting worth thousands of dollars for their golden jubilee anniversary. The painting will be considered marital property and subject to judicial division regardless of where the husband got the money for the gift from, whose name appears on the title, or who primarily uses the painting.
This can be favorable for the spouse who gave the present because the court will divide the gift’s value between the parties. In contrast, for the spouse who received the present, this may mean that they will not be allowed to keep it or may have to compensate in some other way.
Assets and property obtained before marriage by either husband or wife are considered independent property and are not subject to division.
Both parties can exempt property and assets from being split through a lawful prenuptial or postnuptial agreement, even if the assets would otherwise be measured marital property. The court would honor their agreement and exclude such goods from the marital estate if they met the prerequisites for a legally enforceable agreement beforehand.
This is most common when one of the spouses has rental property before the marriage. As long as the spouse who owns the rental property keeps the revenues separate from marital property or joint accounts, the revenue generated will be considered non-marital property.
During a divorce, the spouses’ assets and property are not the only things shared; the couple’s obligations and debts are also divided. Like assets and property, liabilities are classed as separate and non-marital obligations or marital liabilities, based on who committed the debt and when it was incurred. If a debt is discovered to be non-marital, the spouse who incurred it will be solely accountable for the debt after the divorce. If the liability is judged to be marital, the court may order that the debt be paid jointly by both parties or that some marital assets be liquidated to cover the debt.
Although the Florida Divorce Law covers all of the major aspects of property division, many problems can still arise during the whole process, especially if you and your ex are not on speaking terms. Hiring a qualified mediator will take care of all the communication for you and help preserve your property rights and your best interests throughout.
Contact Ann Goade for a free consultation today and save your time and money from getting wasted over marital conflict. With over 35 years of experience, Ann Goade is a Premier Family Law Mediator who can help you come to an agreement that’s fair for both of you.