When a married couple divorces the most contentious issue other than parenting time for the children is usually the division of property, which is required in a dissolution. Property is either personal or real. Personal property, including intangible property, includes motor vehicles, furniture and appliances, jewelry, gun and stamp collections, life insurance policies, retirement accounts, stocks and bonds, bank accounts and other assets. Real property is of course real estate and includes the marital home.
In any divorce, property is categorized as marital or non-marital. Generally, non-marital property is that which was owned by a party before the marriage, was gifted to only one party, or an inheritance for only one party. Property acquired during the marriage is considered marital and subject to division by the court unless otherwise decreed.
There are some gray areas, however, where non-marital property or a portion of it may be marital and where marital may be deemed separate. For example, property acquired by inheritance, gift or by an award for pain and suffering in a personal injury case is considered non-marital property even if acquired during the marriage. You can also designate certain property as non-marital in a prenuptial agreement.
Further, any premarital real property that you start renting out during the marriage remains your separate property as does the rent payments. This may change if separate assets are comingled with marital assets so that any distinction no longer applies.
Florida follows the laws and principles of equitable distribution in a divorce case. Although there is a presumption on the part of the courts to divide the marital property equally in most cases, it has the discretion to award more assets to one of the parties where certain inequities exist or there is marital misconduct. Dealing with the marital home may involve some particular considerations when there is a dependent child.
Factors in Determining Equitable Distribution
The court may look at certain circumstances where an equal or 50-50 distribution is not appropriate. These include:
The court will also consider any other factors it deems relevant to determine equity and fairness.
Handling the Marital Residence
In deciding whether to force sale of the marital home to divide the equity or allow one spouse to buy out the other, the presence of dependent children may make a difference. If it is in the best interest of the child and it is economically feasible to maintain the residence, the court will likely award exclusive use and possession to the spouse with primary custody until the child is emancipated.
Regarding the equity, there may be a case where a spouse owned separate or premarital real property, sold it and used the equity as a down payment for the marital home. Upon divorce, the spouse can claim the down payment as separate property. In a marriage of long duration, though, a court could conceivably rule that the assets had become so inextricably commingled during the relationship along with the combined and reciprocal efforts of both to the relationship that the equity should be divided equally.
Of course, the value of real property can often be a source of disagreement. It is beneficial to have real property appraised in order to determine its true value.
Either party can also file a simultaneous partition action with the dissolution of marriage. A partition requests the Court to sell certain real property owned by the parties. Typically, however, through the course of litigation, the parties are able to agree to a value and distribution of the marital home in order to alleviate the need for the Court to sell same.
These factors take into account marital misconduct where a spouse out of anger or spite deliberately destroys or damages certain assets so that they cannot be divided or end up with the other spouse. The court looks back two years from the date of the petition for any such acts since marital discord usually develops over time. Examples of such misconduct may include the following:
Misconduct does not include making risky investments that failed since it was not done with the intention to deplete the assets. Even engaging in an extramarital affair that severely depressed members of the family is not considered misconduct justifying an unequal distribution in and by itself since no assets were damaged or diminished in value.
Any use of the marital assets by one spouse that was for that party’s sole benefit and for a purpose unrelated to the marriage and at a time when there was marital discord can be treated as misconduct for purposes of property distribution. In such a case, the court may award a greater percentage of the remaining marital assets, such as a greater percentage of the home’s equity, to the other spouse but only to the extent necessary to make the parties’ financial situation more equitable.
Retain an Experienced Family Law Attorney
The division of assets in a Florida dissolution is complex. Classifying property as marital or separate is not always so obvious and you may have strong arguments for having the court award you more than an equal share of the marital assets. Discuss your issues with an experienced Florida family law attorney in any situation where divorce is a possibility so that you can protect your assets in case dissolution is the final option.