Assets and Liabilities

How Will My Property Be Divided in a Divorce?

In Florida, property is divided in a divorce proceeding pursuant to “equitable distribution.” Florida law requires that the division of marital assets and liabilities in a divorce case be equitable, or fair, in value. Real, tangible and intangible property, such as a house, bank accounts, retirement accounts, art collections, stocks, or jewelry accumulated during the marriage, all constitute “marital assets.” Debts, such as a mortgage, loans, taxes, and credit cards accumulated during the marriage, are all considered “marital liabilities” and must be divided between the parties so that each person receives the equitable value of the marital estate. Whether your marital estate is considered a high net-worth or is minimal, the applicable law is the same and we have significant experience in resolving all types of cases.

The first step in equitable distribution is to identify which assets and liabilities are marital and which are non-marital. Separate, non-marital property, is not subject to distribution in a divorce proceeding. As a general rule, assets and liabilities acquired prior to the marriage are considered separate, non-marital property, while assets and liabilities acquired during the marriage are considered marital property. Other types of separate, non-marital property include gifts acquired by one spouse (which are not gifts from the other spouse), an inheritance during the marriage, income derived from non-marital assets during the marriage, unless treated or used by the parties as marital funds, assets and liabilities deemed to be separate based upon a written agreement of the parties, such as a pre-nuptial or post-nuptial agreement, and any liabilities incurred by forgery of one spouse signing the name of the other spouse. In addition to property acquired during the marriage, marital property includes any enhancement or appreciation in value of non-marital assets during the marriage due to the efforts of either party during the marriage or the spending of marital funds, inter-spousal gifts, vested and non-vested benefits associated with stock- options, retirement, pension, and insurance plans accrued during the marriage, jointly titled personal property, and real property held as tenants by the entireties. The cut-off date for determining whether assets and liabilities are to be identified as martial or non-marital is the earliest of the date the parties enter into a written separation agreement, a date that is expressly established in a written agreement, or the date of the filing of a petition for dissolution of marriage.

The second step is to value each asset and liability. Depending upon the complexity of your marital assets and liabilities, we may have to hire a forensic accountant or property appraiser to provide actual values. The date for determining the value of assets and amount of liabilities is the date or dates the judge determines are fair under the circumstances based upon the particular facts of each case. Once we know the actual value of the assets and liabilities that you and your spouse accumulated during the marriage, we then discuss your “wish list” of assets and liabilities that you would like to receive as part of a settlement in your divorce. Our goal is for you to keep those assets and not have to liquidate them to pay attorneys’ fees and costs of litigation.

The third step is to divide the assets and liabilities based upon the valuations. The parties can negotiate their own distribution of property or the court may equitably distribute such marital property if you and your spouse are unable to agree upon the division of property; this applies regardless of the size and amount of the marital assets and liabilities. Under certain circumstances, an unequal distribution can be made by the court after considering relevant factors, such as the length of the marriage, each spouse’s economic situation, the spouse who will be primarily caring for the children and the ability of the children to reside in the marital home, spousal contributions to the marriage, interruption of a career for the sake of the marriage and/or the children, and whether either spouse wasted marital assets two years prior to the filing of the petition for dissolution of marriage or after the filing of the petition.