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Florida legal document preparers may not advise consumers about their legal rights or obligations. However, we can provide information to help people make informed decisions. When a couple has decided there is no way to save the marriage, and divorce is on the horizon, many couples try to work things out between themselves.
Coming to an agreement about how to divide assets and debt can save couples thousands of dollars in attorney fees. Couples can reach agreements about dividing property either on their own or with the help of a mediator. Courts generally uphold such agreements as long as they are in writing and each spouse has had an opportunity to consult with an independent attorney. If a couple can't reach an agreement, a judge will decide.
It is helpful to know the basics of what each person may be entitled to or obligated to pay for. In general, marital assets and debt are equitably divided between the spouses. Marital property in Florida is anything acquired during the marriage with money earned while married. It does not matter whose name the asset is titled in. There are many unique rules that govern gifts, inheritances, retirement accounts, and family businesses.
Types of property that may need to be divided during a divorce include things like vehicles, household furnishing, electronics, real property, funds in bank accounts, investment accounts, and stocks. Some types of retirement accounts require divorcing couples to submit a qualified domestic relations order (QDRO) to the court. A qualified domestic relations order applies to all retirement funds and accounts that fall under the rules of ERISA. Qualified retirement plans, 401(k)s, and 403(b)s all require a QDRO in a Florida divorce if the account is to be split or transferred between spouses.
Florida is an equitable distribution state.
Under an equitable distribution approach, your marital property will be divided equitably or fairly, but not necessarily equally. Often, equitable division doesn't result in a 50/50 split.
Florida judges consider several factors when dividing property, including:
each spouse's income and earning potential
the length of the couple's marriage
the number of minor children at home
whether one spouse made career sacrifices for the other spouse's education or job
each spouse's debts and assets
each spouse's overall physical and mental health, and
any other relevant factor.
After considering the above factors, a judge will make a property determination that meets the needs of both spouses and serves the best interests of the couple's children, if any.
How Is Property Divided?
As stated above, assets are usually divided equally; however, the judge can make an unequal division after considering all of the relevant circumstances, including the following:
the length of the marriage
each spouse's overall economic circumstances
the desirability of allowing the couple's minor children, or either spouse, to continue living in the marital home
each spouse's contributions, including improvement of marital or nonmarital assets and contributions to the marriage either as an income-earner or as a parent or homemaker
whether either spouse interrupted a career or education during the marriage or contributed to the other spouse's career or education
each spouse's debts and liabilities, and
whether either spouse intentionally wasted or destroyed marital assets either after the divorce petition or within the two years preceding it.
Another factor courts consider is the difficulty of dividing certain assets. For example, in most cases a judge would try to award a business started by one spouse during the marriage entirely to that spouse and award other property or money to the other spouse to make up for the marital interest in the business.
A court won't divide up a home and award each spouse part of it, but might order the couple to sell the marital home and divide the proceeds. If a marital home is the couple's only major asset, a judge might also order the couple to wait until some future date to sell the home and divide the proceeds, and award one spouse a temporary right to live in the home. This is a particularly common result when the couple has minor children still living in the home.
