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.

Marital Assets Distribution: Florida Divorce Laws

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.

Who Gets the House in a Florida Divorce?

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:

Giving the House to the Primary Caregiver

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.

Selling it to the Other Spouse.

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).

House for Sale

 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.

Mortgage Problems

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.

Property Division: Marital Vs. Nonmarital

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.

Marital Property Is Divided As Follows:

Property Obtained During the Marriage

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 Entireties Hold Real and Personal Property as Tenants

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:

• The property must be under joint ownership and management.
•  Both spouses must own the same percentage of the property
• The parties must have been married at the time the property was purchased

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.

Retirement Perks

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.

Exchange of Expensive Gifts during Marriage

 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.

Non-Marital Property Is Divided As Follows:

Pre-Marital Assets

Assets and property obtained before marriage by either husband or wife are considered independent property and are not subject to division.

The agreement that Excludes Assets and Property

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.

Non-Marital Assets-Derived Income

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.

Liabilities

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.

Can’t Agree On How To Divide Up Your Property? A Mediator Can Help!

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.

Frequently Asked Questions

How is marital property divided in Florida if spouses cannot agree?

Florida follows equitable distribution law, which means marital assets and debts are divided fairly, though not always equally. If spouses cannot reach an agreement, the court identifies marital property, values the assets, and determines a fair distribution based on factors such as financial contributions, earning capacity, and the length of the marriage.

Does Florida always divide marital property 50/50?

No. Florida courts begin with the presumption that an equal division is fair, but judges can order an unequal distribution when circumstances justify it. Factors such as one spouse’s financial sacrifices, waste of marital assets, or economic circumstances may support a different allocation.

What happens if one spouse refuses to communicate during a divorce?

A spouse’s refusal to communicate does not stop the divorce process. Attorneys, mediators, and the court can facilitate negotiations, exchange financial information, and resolve disputes. If necessary, a judge can make final decisions regarding property division and other contested issues.

Can mediation help divide property when spouses are constantly fighting?

Yes. Mediation is commonly used in Florida divorces involving high conflict. The parties do not have to negotiate directly with each other. The mediator can conduct separate discussions and help the spouses reach agreements regarding real estate, bank accounts, retirement funds, and other marital assets.

Is a house considered marital property in Florida?

A house may be marital property if it was purchased during the marriage or if marital funds were used to pay the mortgage, improve the property, or increase its value. Even a home owned before marriage can have a marital component that becomes subject to equitable distribution.

Are retirement accounts divided during a Florida divorce?

Yes. The portion of a retirement account or pension accumulated during the marriage is generally considered a marital asset. Courts can divide retirement benefits through a settlement agreement or a Qualified Domestic Relations Order (QDRO), depending on the type of account.

What if my spouse is hiding assets during the divorce?

Florida law requires full financial disclosure from both spouses. If a spouse hides assets, the court can impose penalties, reopen financial issues, or award a larger share of property to the other spouse. Financial records, subpoenas, and forensic accountants are often used to uncover concealed assets.

Can separate property become marital property in Florida?

Yes. Separate property can become marital property through commingling. For example, an inheritance deposited into a joint account or a premarital asset improved with marital funds may lose some or all of its separate status and become subject to division.