In a typical divorce settlement in Florida, assets and debts are divided using the rules of equitable distribution, which aims to achieve a fair allocation of marital property to both spouses. However, it doesn’t necessarily mean that spouses get an equal 50/50 split of the marital assets.
A typical divorce settlement in Florida will see spouses receiving a fair (but not necessarily equal) distribution of assets and liabilities based on factors and guidelines set by Florida law.
Florida divorce law divides assets into marital and non-marital property.
Once property is categorized, the courts attempt to distribute the assets based on factors such as the contributions of each spouse to achieve an equitable distribution.
What Are the Florida Divorce Laws for Property?
Florida’s divorce laws for property are set out in Florida Statutes 61.075. These divorce laws for property require that courts equitably divide the divorcing spouse’s marital assets and liabilities. In general, courts will aim to divide martial assets and debts 50/50 between the spouses. Courts can choose an unequal distribution of assets if sufficient legal justification is given.
Florida divorce law defines assets as either marital or non-marital property. Marital assets are assets acquired during the marriage. Meanwhile, non-marital assets are assets brought into the marriage.
These classifications are codified in Florida Statute 61.075.
What Are Marital Assets and Debts?
According to Florida’s divorce laws, marital assets are assets and liabilities acquired during the marriage.
The types of marital assets are listed below.
- Financial accounts (bank accounts, investment accounts etc)
- Businesses
- Retirement accounts
- Real estate
- Debt
- Spousal gifts during marriage
The following factors are considered by courts when dividing marital assets during divorce proceedings.
- Each spouse’s contribution to the marriage
- Economic circumstances of the spouses
- Duration of the marriage
- Anything else the court deems necessary to do justice and equity between parties
Below is a breakdown of marital assets and liabilities.
How are Bank Accounts and Investment Accounts Divided in a Florida Divorce?
Joint bank accounts and investment accounts are considered marital property that will be divided according to factors like a spouse’s contributions.
Separate bank accounts can be excluded so long as there has been no commingling of funds. If a bank account was used to pay a credit card debt or pay a mortgage, then that account will be considered marital property.
Regarding investment accounts, any appreciation and income generated by the investments can be considered a marital asset if the growth or income happened during the marriage.
How is Business Ownership Divided in a Florida Divorce?
Generally, Florida law will categorize businesses as marital assets if it was formed or acquired during the marriage — making them subject to equitable distribution.
Businesses are deemed a non-marital asset if the couple entered into a valid prenuptial or postnuptial agreement saying one spouse waives any interest in the other spouse’s business.
If a business was inherited from a parent, it will be considered non-marital property too.
If the owner spouse commingles any marital asset with the business, then that business can be classified as marital property.
If one spouse formed the business before marriage and that business increases in value during the marriage, then the court may identify a marital appreciation part of the business, which can be valued for equitable distribution.
Once the court identifies the business as a marital asset, they’ll work with experts (typically a forensic CPA with experience in business valuation) to assign a value. There are three approaches for determining the value of a business in a Florida divorce.
- Income-based – Calculates the net income and expected net income in the near future of the business
- Asset-based – Calculates the value of the assets if ever the business is sold on the open market
- Market-based – Compares the business to similar businesses for sale
How Are Retirement Accounts (Pensions, 401(k)s, & IRAs) Divided in a Florida Divorce?
The state of Florida follows the rules of equitable division when splitting retirement accounts during a divorce. Both defined contribution plans such as 401(k)s or IRAs, and defined benefit plans, such as a pension are divided. Courts use a 50/50 rule as the starting point for dividing retirement accounts.
Courts will attempt to equally divide defined contribution plans such as a 401(k) plans and IRAs. Here, the account balance is multiplied by a percentage of vesting for the account. The result will then be divided between the couple.
In the case of a defined benefit plan, the other spouse can opt for a percentage of the value of the retirement account as a lump sum as a “cash out” payment at the time of divorce. Or, they may choose to receive payments at the time of retirement in the future.
When dividing retirement assets during a divorce a, Qualified Domestic Relations Order (QDRO) should be prepared to avoid creating any tax consequences for early withdrawal.
How is Real Estate Divided in a Florida Divorce?
The court will first need to determine if the real estate is marital or separate property.
Marital property is property acquired or bought by the couple during the marriage. Meanwhile, separate property is owned by either spouse before the marriage.
Separate property is also gifted to one spouse that didn’t come from the other spouse.
If either party wants to put up separate property as part of the divorce, they’ll have to include a partition claim in the divorce paperwork.
If the partition is approved, that separate property can be divided between the couple. Or, it can be sold, and the proceeds will be divided between the couple.
The same can be said when answering who gets the house in a divorce.
Who Gets the House in a Divorce in Florida?
The court considers several factors when deciding who gets the house in a Florida divorce.
- Marital contributions
- Economic circumstances
- Which spouse has custody of the child or children
However, if the house was owned by one spouse before the marriage or was acquired through inheritance or gift, then it might be considered a non-marital asset. In these cases, it won’t be subject to equitable distribution.
How Are Debts Divided During Divorce in Florida?
All marital debt is divided equitably between the divorcing couple during a Florida divorce. According to Florida divorce law, marital debt is any debt that is acquired during the marriage, including student loan debt, car loans, mortgages, and credit card debt. Even debts that are listed under only one spouse’s name are considered marital debts and are subject to equitable distribution.
Student loan debt incurred during the marriage is also a marital liability, although an equal split is unlikely. However, student loan debt from before a marriage is considered non-marital property.
When answering “how is debt divided in a divorce in Florida“, courts consider the following factors.
- Current and future earnings of both parties
- Circumstances of each debt
- Length of marriage
Marital debt division should be included in a divorce settlement since a creditor might continue to come after even the non-liable spouse.
Cases in which one spouse acquired significant debt by spending recklessly, can result in charges of wasteful dissipation. In these cases, the resulting debt might not be considered a marital liability.
Gifts Between Spouses
Florida typically treats gifts to and between spouses as marital assets.
A gift received by one spouse from a third party during the marriage belongs to the spouse it was given to.
However, in some cases, it may be considered marital property — such as when gift money becomes a part of shared funds.
In the case of physical assets, these will have to be appraised first to know their value. Then, the couple can sell it and divide the money.
Another option is that one spouse can give the other party money that amounts to their share of the asset’s value so they can keep the asset.
What Are Non-Marital (Separate) Assets and Debts?
According to Florida law, non-marital assets are assets and liabilities that were acquired before marriage, acquired as a gift during the marriage (not including gifts from their spouse), or acquired by inheritance.
Examples of non-marital assets are listed below.
- Inheritance from a parent or relative
- Assets received by one spouse that’s not from the other party
- Assets owned by one spouse in their sole name (that’s not the marital home)
These kinds of assets aren’t divided in a divorce settlement since they belong to whichever spouse owns them.
However, once these are commingled with marital assets, then they become marital property as well.
Inheritance
In Florida, inheritance is a non-marital asset and will not be divided in a divorce. If the proceeds from an inheritance are used to purchase another asset, this asset is also a non-marital asset. Florida courts do require proof that the assets were inherited.
However, there are circumstances in which an inheritance is considered a marital asset and therefore subject to Florida state laws of equitable division.
For instance, an inherited home is a non-marital asset, but if the couple moves in, it becomes a marital home.
Assets or Debts Defined in a Valid Prenuptial Agreement
A prenuptial agreement is a contract between two people before marriage. It outlines the responsibilities and property rights of each party during the marriage.
It can also contain the terms and conditions on how to divide marital assets and responsibilities in the event of a divorce.
If the Florida judge deems a prenuptial agreement valid, then the agreement will be followed regarding the division of assets and liabilities.
Otherwise, or if there was no such agreement, marital assets will be divided through equitable distribution.
Social Security
Social Security is considered income rather than an asset. So, how are social security benefits impacted by a divorce?
After a divorce, one spouse can claim Social Security benefits from their ex-spouse if they meet the following requirements.
- Marriage must have lasted at least 10 years
- Claimant must not have remarried
- Claimant must be 60 years old or older
- Claimant’s own Social Security benefit is lower than the spousal benefit
What Happens to Real Estate Property Owned Before Marriage in a Florida Divorce?
Real estate property acquired before the marriage by one party is considered non-marital property.
However, the moment the spouse who originally owned the property places their spouse’s name on the deed, it becomes a marital asset.
Despite that, no matter how much money and effort both parties put into the marital home, the spouse will likely not be awarded the home since the other spouse owned it before the marriage.
Is Florida a Community Property State?
No, Florida is not a community property state. Community property states divide marital property equally between divorcing spouses. Florida follows the rule of equitable distribution, in which courts attempt to divide martial assets and debts in a fair and equitable manner based on factors such as length of marriage and the financial and non-financial contributions of each spouse.
Are Assets Split 50/50 in a Florida Divorce?
No, assets are not split 50/50 in a Florida divorce. It doesn’t operate under community property laws, where each spouse equally owns all non-financial and financial assets acquired during the marriage.
Instead, there are non-marital assets that belong to the respective spouses who earned them.
Marital property won’t have an equal split either. Instead, they’ll be divided according to factors such as earning potential and earning contributions of each spouse and the value of a spouse who stayed in the marital home to raise children.
As such, one spouse can be awarded around one-third to two-thirds of the marital assets. However, this is only a guideline.
Note that the court will define what constitutes “marital” and “non-marital” assets.
What Factors Impact Asset Division in a Florida Divorce?
Assets and liabilities are divided under the rules of equitable distribution.
Couples can talk between themselves with the help of a mediator to figure out how to divide assets. They may even agree on an equal split.
But if they can’t come to an agreement, they may need to hire the help of a divorce attorney to represent them and ensure they’re treated fairly in court.
There, the Florida judge will decide the division of marital assets for them.
How do the Contributions of Each Spouse Impact Asset Division in a Florida Divorce?
Aside from the circumstances surrounding each party, Florida courts also consider the financial and non-financial contributions of each spouse to decide how to divide assets.
Financial Contributions
Financial contributions are essentially money used for acquiring, maintaining, and improving assets during the marriage.
Financial contributions can come from any source, like:
- Savings
- Wages
- Proceeds from investments
- Gambling winnings
Non-financial Contributions
Non-financial contributions include:
- Child-rearing
- Homemaking
- One party stopping their education or career to further the other spouse’s education or career
In a Florida divorce case, monetary value is assigned to the non-financial contributions. Those values are then combined with any income the spouse earns.
As such, it’s important that a spouse works with a divorce attorney who can help them calculate the worth of their non-financial contribution to the marital home.
How Do the Future Financial Needs of Each Spouse Impact Asset Division in a Florida Divorce?
Some future financial needs of each spouse include child support, alimony, health insurance, and maintenance of living standards.
These will determine how marital property and assets will be divided.
How Do Child Support Payments Impact Asset Division in a Florida Divorce?
The court also considers the children of the couple divorcing.
Decisions such as who will have primary custody and financial needs for their upbringing will affect the division of assets. Existing student loan debt will also be subject to equitable division.
The court might be more in favor of whoever will have primary custody of the children.
How Do Alimony Payments Impact Asset Division in a Florida Divorce?
Each party’s marital and non-marital assets are considered when determining alimony in a Florida divorce. That’s because the court looks at two major things.
- If the party asking for alimony has a need for it
- If the party being asked to provide alimony can afford to pay
If one spouse ends up with assets that can produce enough income for their needs, they may need less alimony or be able to pay for more alimony.
How Does Intentional Waste (Dissipation) Impact Asset Division in a Florida Divorce?
As the name implies, wasteful dissipation of marital assets is the unreasonable abuse or waste of marital property. Some examples include:
- Emptying the joint bank account
- Reckless borrowing
- Gambling
- Incurring debt
Cases of wasteful dissipation of marital assets can be tricky. This is because courts need to check disputes regarding dissipation and whether they happened within two years of the divorce petition being filed or after it was filed.
Generally, courts shouldn’t include the dissipated assets in the equitable distribution of the remaining assets.
How Does a Prenuptial Agreement Impact the Division of Assets During Divorce?
A prenuptial agreement is a contract containing the responsibilities and property rights of each person during the marriage.
It also includes the rights and responsibilities of each party if a divorce takes place. These include:
- Property division
- Debt division
- Spousal support
- Inheritance rights
- Protection of separate property
If the prenuptial agreement is valid, the court will follow the terms listed on it. If not, or no such agreement exists, assets will be divided according to the Florida statute.
How Does the Commingling of Marital Funds Affect the Division of Assets During Divorce?
Commingling of marital funds happens when non-marital assets are brought into the marriage, transforming them into marital assets.
If that’s the case, it will now be part of the assets and liabilities evaluated for equitable distribution.
For instance, the couple might have moved into a house either of them owned before the marriage. Then, funds were used to pay for the mortgage and improve the marital home.
These mortgage and home improvement funds may be considered marital assets.
What Steps Are Involved in Dividing Assets During a Florida Divorce?
Dividing assets during a divorce in Florida can be a lengthy and complex process. As such, it’s recommended that both parties seek legal counsel.
The steps for dividing assets during the divorce process are listed below.
- Disclosure of Financial Information
- Inventory of Assets
- Valuation of Assets
- Classification of Assets
- Documentation of Assets
- Determining an Equitable Division
Below is a discussion of each step.
1. Disclosure of Financial Information
In Florida, couples need to fill out a Family Law Financial Affidavit. If the couple has a pre- or post-nuptial agreement, the couple will submit it alongside the affidavit.
Some information spouses can expect to reveal in an affidavit include:
- Streams of income
- Loan applications or debts
- Bank account/savings information
- Real estate documents
- Pension or retirement accounts
- Life insurance policies
- Business tax returns
Couples will also need to provide the right documents as proof — like pay stubs for proving income and deeds and leases for real estate documents.
Financial disclosure is especially important if either party is asking for financial relief.
Failure to comply within 45 days gives the court the right to proceed with the divorce without considering the claims of whichever spouse doesn’t submit the affidavit.
Is It Illegal to Hide Assets in a Financial Disclosure?
The hiding of assets during the divorce process can result in criminal or civil contempt of court, resulting in fines or jail time.
2. Inventory of Assets
Both parties will have to create a full list of assets and liabilities.
A divorce attorney can help both parties create an inventory of assets.
3. Valuation of Assets
Couples will need to hire appraisers to ascertain the value of their assets.
For instance, an appraiser can tell the price of jewelry or real estate. These appraisers might also be asked to appear in court later on to confirm the value of assets.
4. Classification of Assets
Couples will need to classify whether assets and liabilities are marital or non-marital.
They’ll also need to be ready to show where, when, and how each of their assets were acquired. These will prove whether they’re marital or non-marital assets.
5. Documentation of Assets
Couples should provide documentation for assets they’ve listed in their financial affidavit. This helps with the previous step of classifying assets.
Using spreadsheets or Word documents like a sign-off sheet can make it easier to keep track of assets and liabilities.
A sign-off sheet is a document that shows both parties involved agree on something.
In a divorce, the signatures can mean that the couple has fulfilled their obligations for the divorce — like documenting their non-marital property.
The document can also mention consequences if either party doesn’t do their part.
6. Determining an Equitable Division
If the couple is undergoing mediation, they can discuss how to divide assets and liabilities themselves. If they choose to undergo litigation, they’ll need to follow court rulings.
The court will consider the following factors:
- Marriage length
- Financial and non-financial contributions of each spouse
- Dependent children
- Economic status of each spouse
Spouses may still appeal and negotiate the division even after hearing the court’s decision.
How Long Does the Division of Assets Take in a Florida Divorce?
A Florida divorce case can take 3 to 24 months, depending on whether it’s contested or uncontested.
To file a divorce, either party should be a Florida resident for the last six months. Apart from that, it must be agreed upon that the couple’s marriage is irretrievably broken.
Uncontested Divorce
An uncontested divorce occurs when both parties involved completely agree on every single detail of the divorce — from the division of assets and liabilities to parenting arrangements.
If this is the case, it can take up to 3 to 4 months, counting the time spent to prepare the case.
Contested Divorce
Contested cases, whether initially contested or not, take more time. A Florida divorce case becomes contested if even only one spouse argues over any detail, no matter how little.
It takes around 4 weeks to prepare the case itself, although filing is instant. The other party then has 20 days to file an answer to the Summons and Petition.
Next, financial disclosure/discovery can last around 90 days. This is when divorcing spouses submit a minimum-specified set of financial documents — which usually include bank statements and paycheck stubs.
A judge might require mediation, where couples can work out the details themselves.
If they still can’t come to an agreement, then the court will end up handling the equitable distribution of assets and assigning responsibility for liabilities.
Are There Tax Implications of Dividing Assets During a Divorce?
Dividing assets such retirement accounts, the marital home, and businesses during the divorce process have different tax implications.
Because of this, couples should be aware of how a particular asset should be valued and divided to avoid paying more taxes than necessary.
What are the Tax Implications of Dividing Retirement Assets in a Divorce?
Couples should be mindful of all the tax implications of divorce on all their assets.
For instance, only a part of retirement accounts (like 401k plans, IRAs, and Roth IRAs) counts as marital property.
That’s because these accounts are usually started before the marriage. As such, only the amount earned during marriage is considered marital property.
If one spouse needs to roll over the funds to their own retirement account, they’ll need to label the action accordingly. Otherwise, they might be charged early withdrawal fees and tax penalties.
For instance, the spouse who owns the IRA account must specify that the separation transaction is to be treated as a transfer incident. This is so the action won’t be taxed.
A financial advisor can assist the couple in splitting financial accounts — including retirement accounts.
What are the Tax Implications Dividing Real Estate in a Divorce?
Transferring property between spouses might produce taxable gain or gift tax liability in some circumstances.
For instance, the property transfer must be made under a property settlement agreement that’s incorporated into a divorce decree.
The agreement must also be entered within three years of the divorce case. Otherwise, it may be subjected to gift tax.
Property transfer also won’t be taxable if it happens within a year after the marriage ceases.
What Are the Tax Implications of Dividing a Small Business in a Divorce?
During a divorce, a business will need to undergo valuation to determine what it’s worth.
Some things that experts may check are its future earning potential, tax returns, projected budgets, and expense reports.
Similar to real estate, the “sale” of part of the business by one spouse is not a taxable transaction.