Marital Property in a Florida Divorce

In a divorce case, when the court adjudicates the Husband’s and Wife’s respective claims regarding their property, the Court should first determine which assets and liabilities are non-marital.

Florida’s equitable distribution statute (Fla.Stat. Sec. 61.075) creates a presumption that “marital assets and liabilities” include the following:

1. Assets acquired and liabilities incurred during the marriage. Such assets and liabilities are presumed to be marital, regardless of whether they were acquired or incurred by one spouse alone or by both spouses together.
2. The enhancement in value and the appreciation of non-marital assets that results from either the efforts of either party during the marriage or the expenditure of marital funds or other marital assets. However, an increase in value of a non-marital asset, due to “passive” forces such as market conditions or inflation, does not result in a portion of the non-marital asset becoming a marital asset.
3. Gifts given by one spouse to the other during the marriage.
4. All vested and non-vested benefits, rights, and funds that accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
5. All real property that is held by the parties as tenants by the entireties, regardless of whether it was acquired prior to, or during the marriage.

Also, there are ways by which non-marital assets may become martial assets, particularly due to the co-mingling of marital funds in an account with non-marital funds. In this circumstance, all of the funds in an account that were non-marital, may be deemed marital funds by the divorce court.

Divorce and Property—Marital or Nonmarital?

In a Florida divorce case, before the court determines an equitable distribution of marital assets and liabilities, the court must first set apart to each spouse his or her nonmarital assets and liabilities.

According to Fla.Stat. 61.075, nonmarital assets and liabilities include:

1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities.
2. Assets acquired separately by either party by noninterspousal gift, or inheritance, and assets acquired in exchange for such assets.
3. All income derived from nonmarital assets during the marriage, unless the income was treated, used, or relied upon by the parties as a marital asset.
4. Assets and liabilities excluded from marital assets and liabilities by a valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse.

On a cautionary note, it is usually essential to maintain nonmarital accounts separately from marital assets, so that a divorce court will conclude that such assets are, in fact, nonmarital. If there is co-mingling of marital funds with nonmarital funds, the court in a divorce case may rule that all of the funds in such an account are now marital.

Divorce and the Equitable Distribution of Assets and Debts in Florida

Since 1993, Florida’s equitable distribution statute (Fla. Stat. 61.075), has required a trial court in a divorce case to divide the marital assets and liabilities equally between the parties, unless the court rules that an unequal distribution is justified. In this event, the court must make written findings justifying an unequal division of assets. The statute lists the factors that a court must consider in a divorce case when determining an equitable distribution. Because an equal division of marital assets and liabilities is the initial presumption in any equitable distribution plan, these factors are applied to determine whether an unequal division of property is justified. Some of the statutory factors that the court must consider in a divorce case, are:
1) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as a homemaker.
2) The economic circumstances of the parties.
3) The duration of the marriage.
4) The desirability of retaining any assets, including an interest in a business, corporation, or a professional practice, intact and free from any claim or interference by the other party.
5) The contribution of each spouse to the acquisition, enhancement, and production of income, to the improvement of both the marital and non-marital assets of the parties, or to the incurrence of liabilities, with regard to both the marital and non-marital assets of the parties.
6) The intentional dissipation, waste, depletion, or destruction of marital assets after the petition was filed or within two years before the petition was filed.