This Florida Divorce Property Division Overview covers the general basics of how Florida law usually works when it comes to dividing the things you own and the money you owe with your spouse. Our separate Florida divorce business valuation overview goes in more detail about how your business is addressed in divorce, and is therefore not mentioned below.
The bottom line with Florida law is that, with few exceptions, you and your spouse should each receive one half of the “marital net worth” in your divorce. This means that you should get an amount of money, property, and debt that is equal to half the value of all “marital assets” minus all “marital liabilities.”
Notably, “marital assets” and “marital liabilities” usually will not include (1) assets inherited during the marriage that are always kept separate; (2) property owned prior to the marriage; or (3) liabilities that preexisted or were unrelated to the marriage. Such assets and liabilities are referred to as “non-marital” and are kept out of what is the usually equal division of “marital net worth” in a divorce.
By way of example, assume the following facts:
- Your “marital assets” are worth two million dollars;
- Your “marital liabilities” total one million dollars; and
- Right before the divorce started, you inherited one million dollars that you deposited into a separate bank account and never mixed with any “marital assets.”
Under these facts, there would be a “marital net worth” of one million dollars ($2,000,000 in marital assets – $1,000,000 in marital liabilities = $1,000,000 marital net worth). In your divorce, you and your spouse would each leave the marriage with a “marital net worth” equal to five hundred thousand dollars ($1,000,000 “marital net worth” x 50% = $500,000 “marital net worth” for each spouse). Further, you would also keep your one-million-dollar inheritance, which is not a marital asset since you always kept it separate. After everything is said and done, your net worth after the divorce will be $1.5 million (your $500,000 share of the “marital net worth” + your $1,000,000 inheritance= $1,500,000).
Usually, each individual asset and liability is not literally split equally. Instead, each person will receive certain assets and liabilities, so that each spouse leaves the marriage with approximately the same “marital net worth.” In certain situations, where most of the “marital net worth” is tied up in a house or business, it may be necessary for assets to be sold, or for one spouse to make payments to the other over time in order for each spouse to have an equal “marital net worth” after the divorce.
Dividing property in a Florida sounds simple in principle. It can be, but there can also be complications. Most of the squabbling/litigation with dividing property is over: (1) determining the value of an asset; (2) determining the date used to identify and value an marital assets/liabilities; (3) determining whether an asset/liability is “marital” or “non-marital”; (4) determining whether there is any “equitable basis” for one spouse to receive an “unequal” amount of the marital assets/liabilities; and (5) determining whether either spouse wrongfully secreted “marital assets” or wrongfully incurred “marital liabilities.” These sub-issues of dividing property and debt in divorce are explained further below.
Determining the value of an asset:
While it is simple to figure out the value of a bank account or credit card debt by looking at the appropriate financial statements, other assets are not as easy to value and necessitate a forensic accountant or appraiser for a more definite valuation as part of a Florida divorce property division. This is especially the case with businesses, which are covered in more depth in this Florida Divorce Valuation Overview.
Valuation issues requiring an appraiser also commonly come up when the marital assets include real estate, alternative investments, yachts, jewelry, art, and other collectibles. Although you may feel like the costs of the lawyers are already high enough for you to pay, it can be worth your money to obtain appraisals on the value of any unique marital asset to ensure you are not shorting yourself in a settlement by placing too high or low of a value on an asset.
Determining the date for identifying and valuing marital assets/liabilities:
Contrary to general thinking, in Florida, an asset or liability is “presumed” to be “marital” if it existed on the date the divorce was filed, with the date for identifying marital assets/liabilities usually being the “filing date” of the divorce. Many people are shocked to learn that assets/liabilities that accumulate during long periods of separation can be “marital,” even when a spouse has moved on and is living with a separate person.
As far as the “valuation date,” most assets are valued as of the date the divorce was filed. However, a value closer to trial will usually be used for assets with values that passively increase/decrease due to market forces and not the efforts of any spouse (such as an investment in a stock market index fund that rises and falls with the stock market).
The date closest to trial will also be used to value an asset in most cases, if a spouse was forced to spend down the value of an asset during the divorce case, to support themselves, their spouse, or pay the costs of litigation.
Determining whether an asset is “marital” or “non-marital”:
Generally speaking, an asset is “non-marital” if it was owned prior to the marriage or inherited, as long as the asset was always kept separate from “marital assets.” That said, there is usually a “rebuttable presumption” that all assets or liabilities owned by either spouse are “marital” in nature and part of the usually equal division of the “marital net worth” in a Florida divorce property division.
In other words, all assets and liabilities are “marital” unless someone proves they are “non-marital,” which can be easier said than done if the person with the burden of proof is you. Complicating this issue are the concepts of “comingling” and “marital improvements.” Under the “comingling” concept; if a “non-marital” money is mixed with “marital” money, then the “non-marital” money is usually converted into a marital asset (meaning you have to split it with your spouse). Under the “marital improvements” concept; the amount of an increase in value of a “non-marital” asset that can be (1) traced to your efforts during the marriage or (2) the expenditure of marital funds, is a “marital asset” subject to division.
A Florida divorce property division can start to get complicated if you inherited money during the marriage or brought assets into the marriage that had any significant value. If this is the case, you would be well served by obtaining as many details as you can about your inheritance or assets owned prior to the marriage, including:
- When you first obtained the asset;
- What happened to the asset during the marriage (was it kept separate, mixed with other assets, etc.);
- How did the value change during the marriage; and
- Is any change in value possibly attributable to your efforts during the marriage or the expenditure of marital funds.
Then, discuss these details when you consult with an attorney.
Determining if there should be an “unequal distribution” of the “marital net worth”:
In Florida, the divorce judge has the ability to determine whether there should be an unequal division of the “marital net worth.” In other words, the judge could determine you will receive less than fifty percent of the “marital net worth.”
While Florida divorce property division law allows for this “unequal distribution” in theory, in practice, this can be extremely difficult to convince a divorce court judge (who is used to dividing marital assets equally) to implement anything other than an equal split of the “marital net worth” unless part of the net worth is made up of what used to be non-marital assets.
In case you were wondering, the “my spouse had an affair” or “my spouse was lazy the entire marriage while I worked 80 hours a week” arguments, will almost never be enough to convince a judge to depart far from the typical “fifty-fifty” division of the “marital net worth.” Usually, there has to be an exceptional circumstance to justify an “unequal distribution” of the “marital net worth.”
Determining whether there was “wrongful dissipation”:
“Wrongful dissipation” occurs when it is proven that one spouse spent down assets or incurred liabilities on an affair, or another purpose deemed “unrelated to the marriage.” If “wrongful dissipation” is proven, then the other spouse will receive a credit for half the amount that was wrongfully dissipated. The credit is half the amount of “wrongful dissipation”, because the non-offending spouse would have otherwise received one half of each dollar that was dissipated.
By way of example, assume that in a Florida divorce property division (1) each spouse was set to receive $500,000 as their half of the “marital net worth” and (2) it was proven that the husband wrongfully dissipated $100,000. Under these facts, the wife would receive $550,000 (her $500,000 share of the marital assets plus half of the $100,000 that the husband wrongfully dissipated) and the husband would receive $450,000 of marital net worth in the divorce (his $500,000 share of the marital assets minushalf of the $100,000 that he wrongfully dissipated).