Divorce is typically one of the most traumatic events of a person’s lifetime. It is the multidimensional aspect of divorce that hits most people the hardest — there is no area of life that it doesn’t affect. In addition to the breakup of the family, financial issues often loom large, and it might be far from obvious how a court will divide the property from a marriage.
Florida’s fundamental principle for dividing property in a divorce is that non-marital assets go to the spouse who owns them, while marital assets are divided equally between the spouses unless the court determines that there is a good reason to divide them some other way (and Jacksonville courts often do!). It is critical to identify which assets are “marital.”
Marital assets, subject to the equitable division principle, include:
- Assets acquired during the marriage by either spouse. It doesn’t matter if one spouse purchased the assets using money earned from that spouse’s employment — even the money earned through the spouse’s employment is considered marital property. Appreciation in the value of marital property, or income derived from marital property, are also considered marital property.
- Improvements to non-marital assets. Suppose, for example, that you bought a home worth $200,000 before your marriage, and you built an addition worth $50,000 after the marriage. At the time of your divorce the property is worth $500,000 (due to appreciation), $75,000 of which is attributable to your improvement. In that case, $75,000 of the value of the house could be treated as marital property. An adjustment might be made if, for example, the spouse that owned the house built the addition entirely with her own labor, but this is not certain.
- Gifts between spouses. This rule seems counter-intuitive — doesn’t it defeat the purpose of the gift to treat it as joint property? Nevertheless, interspousal gifts are considered marital property.
- Property owned by the spouses in “tenancy by the entirety“ Tenancy by the entirety is a form of joint ownership available in Florida only to spouses. During the marriage, neither spouse can dispose of the property without the other spouse’s permission. Both real and personal property can be owned in this manner.
- Certain types of benefits such as retirement benefits. If, for example, your retirement benefits began to accrue before you got married, the increase that occurred during the marriage can be considered marital property.
Non-marital assets include the following types of assets:
- Any asset acquired by either spouse prior to the marriage. There is a common misconception that when one spouse is richer than the other at the time the marriage takes place, the richer spouse risks his or her pre-existing assets by marrying the poorer spouse. This is not true.
- Gifts to one spouse (except for gifts from one spouse to the other). One of the consequences of this rule is that you don’t have to worry about your spouse taking ownership of your inheritance, as long as you are the sole heir and you have kept the inheritance separate from marital property.
- Income from non-marital property. If you own a building that you acquired prior to your marriage, for example, rental payments and real estate appreciation are considered non-marital property as well. Be careful here — such property, especially cash, could become marital property if you put it into a joint bank account with your spouse or if you co-mingle it with marital assets.
- Assets that are excluded from marital assets through a prenuptial or postnuptial agreement. There is a loophole here as well — courts occasionally refuse to enforce these types of agreements for one reason or another. Make sure it is drafted carefully, because courts carefully scrutinize these types of agreements.
Debts that arise during a marriage are presumed to be marital property unless unusual circumstances exist. This includes interest that accrued on the original debt
Circumstances in Which the Equitable Division Principle Might Be Modified – Jacksonville Division of Assets
The equitable division principle is a “rebuttable presumption.” What that means in layman’s terms is that marital assets will be divided equally unless one spouse can establish that an equal division would be unjust or oppressive. Some circumstances that might justify deviation from the equitable division principle include:
- An unfaithful spouse spends family income buying expensive gifts for an extramarital lover, thereby reducing marital assets with no benefit to the other spouse. The same consideration might apply to marital debts if, for example, the same spouse borrowed money to buy jewelry for an extramarital lover.
- One spouse built up gambling debts or bought items that were consumed only by that spouse, without the knowledge of the other spouse.
- One spouse quit college or resigned their job to get married or take care of children.
- One spouse contributed to the other spouse’s education (by taking a second job to help pay tuition, for example)
- One spouse wants to keep the entire family home intact for the benefit of dependent children, rather than selling it and dividing the sales revenue equally
- One spouse wastes, destroys, or depletes marital assets within two years before the divorce petition is filed (or any time between the filing of the petition and the final property division order)
- One spouse worked tirelessly to increase marital assets while the other did little or nothing to add to them (note that raising children or keeping house are definitely considered contributions even if they brought the family no monetary income)
The equitable division principle might also be adjusted based on the relative post-divorce financial positions of each spouse, the length of the marriage and any other factor that might render a strictly equitable division of assets unjust.
Experienced Division of Assets Attorneys Are Waiting for Your Call
If you live in Duval, St. Johns, Clay, or Putnam county and you.are considering divorce (or if you are being dragged into one), contact our law firm online or by calling (904) 288-4414 to schedule a no-obligation consultation about your divorce and other family law needs. Our experienced divorce lawyers are waiting to hear from you.