The division of property in a Florida divorce case is governed by Section 61.075, Florida Statutes.
When a couple decides to get divorced, they can divide their property in one of two ways. The first option is for the couple to work together to determine who will retain which property interests and who will be responsible for which debts. If the divorcing parties can agree on how to divide their debts and assets, they should put their agreement in writing and present it to the court for approval. If the court approves the parties’ proposed division of property, it becomes part of their divorce decree.
As you might imagine, many couples do not agree about how to divvy up all of their assets and debts. When parties cannot reach an agreement regarding their marital property, the court will do so for them. In Florida, courts divide marital property between divorcing spouses according to the principle of equitable distribution.
When a Florida court makes a property division, it uses a four-step process. The first step in the process is identifying all of the property that the divorcing couple owns. While most of us think of property in terms of assets, it is important to remember that debts are also a form of property, and so is income.
Once the property has been identified, the court decides which items will be included in the property division and which will be excluded. In Florida divorces, only marital property is divided by the court. Separate property remains with the spouse who owns it. In order for an item to be considered separate property, it must be acquired by one party before the marriage and kept separate from marital or family property for the duration of the marriage, or the parties can agree that certain property is nonmarital. In some limited circumstances, property acquired during the marriage may also qualify as nonmarital property, such as an inheritance.
Once the collection of assets and liabilities that comprise the couple’s marital estate has been identified, the court assigns a value to each piece of marital property. In some cases, experts may need to present evidence of the values of certain assets. For example, the services of a CPA or actuary are required to determine the value of complex financial assets, such as pension plans, stock options, or a business, when the values of such assets are being disputed.
After values have been assigned to all of the marital property, the court divides the property between the parties. A variety of factors are involved in the court’s decision about how to divide the marital property. The length of the marriage is one factor, as are each spouse’s financial and non-monetary contributions. Common sense also plays a big role, especially where things like a business or a home are involved. It would not make sense to give the divorcing parties equal ownership rights in the business that one of them owns. It would make more sense to let the business owner retain the business, while either buying out the other party’s interest in it or assigning a collection of other assets with the same total value as the business to the party not retaining the business. In most cases, equitable distribution results in each party receiving an equal share of the marital estate. In some cases, such as where one spouse has wasted marital assets on drugs, an affair, or gambling, the court may make a property distribution that is unequal, with a greater amount being given to the injured spouse.
Although it may appear straightforward in dividing property in a Florida divorce, there are numerous nuances and issues that often arise. For example, Callwood v. Callwood, 221 So. 3d 1198 (Fla. 4th DCA 2017) (public record), a highly contested Florida divorce case whereby Mr. Cunha’s client prevailed on appeal and after the case was sent back to the trial court over disputed property in the U.S. Virgin Islands. The Florida Fourth District Court of Appeal provided an outline as to the procedure Florida trial courts are required to follow in dividing property during a divorce under Section 61.075, Florida Statutes. If you have any questions regarding the division of property in a Florida divorce, schedule an appointment with our office.