Division of Marital Property

When couples consider divorce one of the primary concerns is, How will the property be divided?

What is Marital Property?

The dissolution of marriage (divorce) statutes in Florida provide for equitable distribution of marital property.  One of the first questions that arise for individuals facing divorce concerns what property is actually marital property. Often individuals believe that the salary they have earned during the marriage is non-marital. However, salary and wages earned during the marriage is marital property as is any retirement benefits. Florida Statutes Chapter 61.075 (5) (a) outlines marital assets and debts to include:

1. Assets acquired and liabilities incurred during the marriage, by either spouse or both spouses

2. The increase in value of non-marital assets by the efforts of either party during the marriage or investment of martial funds or marital assets

3. Gifts from one spouse to another during the marriage

4. All benefits whether vested or non-vested accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs

5. All real estate owned as "husband and wife", whether acquired before or during the marriage. However, a spouse may claim and prove otherwise.

Non-marital assets include:

1. Assets acquired and liabilities incurred by either spouse prior to the marriage as well as assets and debts resulting from an exchange of such assets and liabilities

2. Assets acquired separately by either spouse by non-interspousal gift such as an inheritance

3. All income derived from non-marital assets during the marriage unless the income was used or relied on by the spouses as a marital asset (in such a case the income would be considered “co-mingled” with marital assets and thus become marital funds)

Division of Marital Property

It is important to understand that equitable distribution does not mean that marital property will be distributed equally. Rather, equitable distribution means that marital property will be distributed fairly. When dividing marital property during a divorce in Florida, the court does begin with the premise that marital assets and liabilities should be divided equally. However, there are factors that may justify unequal distribution of assets and debts. These factors include:

• The contribution to the marriage by each spouse, including contribution to the raising of the children

• The economic circumstances of the spouses

• Any interruption of personal careers or educational opportunities

• The contribution of one spouse to the personal career or educational opportunity of the other spouse

• The desirability of keeping the marital home as residence for any minor children of the marriage

With knowledge of what property is marital, couples usually feel more comfortable discussing or negotiating how they will divide their assets and liabilities.  Couples agreeing on how to divide their property without the court’s involvement typically have a less expensive divorce as well as less emotional strain on those involved.