Division of Assets and Debts in Florida Divorce
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Commonly the most difficult and complex area of a Florida dissolution of marriage is the division of assets and debts. One spouse may harbor anger at the other. A scorned spouse may correctly or wrongfully believe waste or wrongful spending may have been committed leading up to the divorce. These and many other factors could lead to costly and protracted “Face Offs” over assets and obligations of the marriage.
The Different Assets
Assets of the marriage may include cars, houses, retirement benefits (pensions and 401(k) plans), business interests, cash, stocks, bonds, bank accounts, personal property and other items of value. Debts (also called “liabilities” or “obligations”) include mortgages, car loans, credit card accounts and other amounts of money you and your spouse owe to third parties.
Florida recognizes two types of property during a Florida divorce. They are “Marital Property” and “Non-marital Property”. With some exceptions, any asset, debt, enhancement or appreciation acquired during the marriage is considered marital property and is thus subject to equitable distribution. Non-marital property is property that existed prior to the marriage that has not been “Comingled”, inheritances after marriage that have not been comingled, and property that qualifies under other exceptions to marital property. Non-marital property will most commonly be awarded to only the ownership party, and not count in the “Equitable Distribution” equation followed by Florida divorce courts.
Absent a Florida pre nuptial agreement or Florida anti nuptial agreement, Florida statutes and case law provide for the “equitable distribution” of marital assets and debts. The court must begin with the presumption that all marital assets and debts are to be divided equally between the parties. However, the court will deviate from the 50-50 distribution of the marital estate if a variant breakdown is fair and equitable. To be clear, equitable is commonly not necessarily equally. The court will decide upon equitable distribution before considering alimony. In applying equitable distribution the court will consider a laundry list of factors including:
- Assistance to the career of a spouse (ex. did you pay half of your spouse’s medical degree?);
- Contribution to the marriage;
- Contribution to the care and education of a child;
- Services of a homemaker;
- Interruption of career of a spouse (ex. did you stop working to care for the family children?);
- Depletion, economic misconduct & marital waste (ex. did your spouse buy his secret significant other a new car?);
- Minor children and marital home for the children (ex. what economic breakdown is in the best interest of the child?);
- Economic circumstances (ex. what are each respective spouses earning potential and current economic health?);
- Length of the marriage (ex. whether the marriage was a long term, mid term or short term marriage);
- Desirability of particular asset to a particular spouse (ex. you don’t get his baseball cards so you can burn them. The collector gets the cards, the other spouse gets equitable value of the cards.);
- Any other factor that the court believes would be equitable.
If the parties can agree on a distribution, the court will generally approve mutual agreements provided the court finds the agreement to be reasonable. If you and your spouse cannot agree, the court will divide the assets and debts during a final hearing.
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