Family Law · Property Division
Dividing Property Fairly During Divorce
Florida is an equitable-distribution state. Courts start from an equal split, but 'fair' doesn't always mean 'equal', and the right strategy makes the difference.
Dividing real estate, assets, and debts in divorce isn't always straightforward, especially if you and your spouse disagree on how property should be divided. Most often, you need an attorney to assist with the issues that arise. You can turn to The Law Offices of Patrick L. Cordero for guidance, support, and advocacy. We work with clients in Miami and throughout South Florida in divorce, property division, and related family-law issues.
Dividing Assets and Debts in a Property Settlement
Florida is an equitable-distribution state (not a community-property state) when it comes to property division. Under section 61.075 of the Florida Statutes, the court begins with the premise that marital assets and debts should be divided equally. A judge can order an unequal split only when there is a justification based on factors listed in the statute, which is why "fairly" does not always mean "equally". If you and your spouse cannot reach an agreement, the court will look at your situation and make a fair decision based on the circumstances of your case.
We can help with valuing your estate, including asset and business valuation. Once the value of your property is determined, we explain how the unique circumstances of your situation could impact the court's decision, and we negotiate or litigate accordingly.
Marital vs. Non-Marital Property in Florida
The first step in any Florida property division is sorting what you own and what you owe into two groups. Only marital assets and debts are divided. Non-marital property stays with the spouse it belongs to.
- Marital property generally includes assets acquired and debts incurred by either spouse during the marriage, no matter whose name is on the title or account, as well as gifts between spouses during the marriage.
- Non-marital property generally includes assets owned before the marriage, gifts and inheritances received by one spouse and kept separate, and property excluded by a valid written agreement such as a prenuptial agreement.
- Growth in value can become marital. If a non-marital asset increases in value because of marital funds or the efforts of either spouse during the marriage, that increase can be treated as marital.
- Commingling can change the label. Depositing an inheritance or other separate money into a joint account, or using it for shared expenses, can make it marital.
- Retirement accounts. Retirement and pension benefits earned during the marriage are generally marital, even if the account is in one spouse's name. Dividing some plans requires a separate court order called a Qualified Domestic Relations Order (QDRO).
- The cutoff date. Marital assets and debts are generally identified as of the date the divorce petition is filed or the date of a valid separation agreement (or a date that agreement sets), whichever comes first. The date used to value them can be different, and the judge chooses the date that is just and equitable.
When Florida Courts Divide Property Unequally
Both spouses must make full financial disclosure under Florida's family law rules, including a sworn financial affidavit, so hidden or wasted assets can come to light. An unequal division is the exception, not the rule. When a judge orders one in a contested case, the decision must be supported by findings based on factors such as:
- Each spouse's contribution to the marriage, including child care and homemaking
- The economic circumstances of each spouse
- The length of the marriage
- Interruptions to either spouse's career or education, and contributions one spouse made to the other's career or education
- The desirability of keeping an asset, such as a business or professional practice, intact and free from the other spouse's claims
- The desirability of keeping the marital home as a residence for a dependent child
- Intentional waste or destruction of marital assets after the petition was filed or within the 2 years before it was filed
A Unique Approach to Every Case
One of the benefits of working with our firm is that we tailor our services to your specific needs. We recognize that every divorce case is different, which is why we approach every situation from a unique perspective. We handle the full range, from high-net-worth divorces and hidden assets to business interests and real estate portfolios.
Common Questions
Florida Property Division Questions, Answered
Is Florida a 50/50 state for dividing property in a divorce?
Florida is an equitable distribution state, not a community property state, but the court starts with the premise that marital assets and debts should be divided equally. A judge can order an unequal split only if factors in the statute justify it. Many couples reach their own agreement on how to divide property instead of leaving the decision to a judge.
Is property I owned before the marriage or inherited considered marital?
Generally no. Property you owned before the marriage, and gifts or inheritances you received individually, are non-marital if they are kept separate. But if marital funds or either spouse's efforts increased an asset's value, that increase can be marital, and mixing separate money into joint accounts can make it marital too.
Does it matter whose name is on the house or the account?
Not as much as many people think. Assets acquired during the marriage are generally marital no matter whose name is on the title or account. A home or account owned before the marriage can stay non-marital, although growth in its value or mortgage payments made with marital funds may create a marital share.
Will my 401(k) or pension be divided in a Florida divorce?
The portion of a retirement account or pension earned during the marriage is generally marital and can be divided, while the portion earned before the marriage is generally non-marital. Dividing many employer plans requires a Qualified Domestic Relations Order (QDRO), a separate order directed to the plan. In some cases, spouses instead offset the account against other assets.
Are debts divided in a Florida divorce?
Yes. Marital debts, such as credit cards, car loans, and mortgages taken on during the marriage, are divided along with the assets. Keep in mind that a divorce judgment does not change your agreement with a lender, so if both names are on a debt, the creditor can still try to collect from either of you.
What date is used to decide what counts as marital property?
Generally the date the divorce petition is filed, or the date of a valid separation agreement if that comes first. The date used to value assets can be different, because the judge selects whatever valuation date is just and equitable. This matters for accounts and investments that change in value while the case is pending.
What if my spouse is hiding or wasting marital assets?
Florida's family law rules require both spouses to make full financial disclosure, including a sworn financial affidavit and supporting documents. If a spouse intentionally wasted or depleted marital assets after the petition was filed or within the 2 years before, the court can take that into account and order an unequal division. Tell your attorney early if you suspect money is being moved or spent.
Schedule Your First Meeting: It's On Us
There is no charge for the first consultation. Call 305-267-3376 to schedule a meeting with one of our divorce lawyers, or contact us online for assistance planning your asset division.
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