Property Division In A Florida Divorce

The Sunshine State is an equitable distribution jurisdiction, meaning that marital property is divided equitably between the spouses, and “equitably” is not always the same thing as “equally.”

Normally, unless the parties had a marital property agreement, property division is a two-step process.

Classification

The general rule is that any property acquired before the marriage or by gift is nonmarital property and everything else is marital property. That rule seems straightforward, but it is often hard to apply in practice.

For example, Wife may use proceeds from her paycheck (marital property) to pay off student debt that she acquired before the marriage (nonmarital property). Or, Husband may use a wedding gift from his parents (nonmarital property) to fund improvements on a rental home that the couple bought after the ceremony (marital property).

In both these instances, marital and nonmarital property has become commingled. To overcome the marital property presumption discussed above, the challenging spouse must produce clear and convincing evidence that at least part of the property is either marital or nonmarital.

To continue with the second example, assume that Husband challenges the designation of the rent house as marital property because of the improvements he funded. If he convinces the judge that the property was commingled, probably by producing receipts, the judge basically has two options:

• Reimbursement: If Husband spent the entire $10,000 gift on improvements, he would be entitled to half the community share under a reimbursement theory.
• Transmutation: However, if the house was unrentable before the improvements, the judge may declare that the house is now Husband’s nonmarital property.

The difference is important, because the increase from separate property (the rents in this case) is separate property, and the increase from marital property is marital property.

Division

To divide marital property equitably between the spouses, the judge can consider a number of different factors, including:

• Relative economic circumstances of each party,
• Noneconomic contributions to the marriage as a “caretaker” spouse,
• Length of the marriage,
• Conservatorship of minor children and the desirability of the children to stay in the family home,
• Dissipation (waste) of community assets (g. giving gifts to a paramour), and
• “Any other factors necessary to do equity and justice between the parties.”

There is a two year statute of limitations on dissipation claims.

To effect an equitable distribution, many couples arrange an offset. For example, Wife could take a lesser share of Husband’s retirement account in exchange for higher alimony payments.

Count on Experienced Attorneys

Property division is an important component of divorce litigation. For a free consultation with an experienced family law attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. After hours appointments are available.

Resource:

flsenate.gov/laws/statutes/2011/61.075