Jacksonville Property Division Lawyers

How Property is Divided in a Florida Divorce

The process of dividing assets can be a major point of contention in any divorce. Unlike many other states, Florida recognizes that some assets can be owned by either the husband or wife, and are not necessarily considered community property that must be valued, tallied, and then divided in a divorce settlement.

Many times, it takes a divorce attorney to successfully argue that separate property be excluded from the equitable distribution of assets. Are you concerned about how your property will be divided? Owenby Law, P.A. is here to protect your best interests.

If you or your spouse is in the military, the circumstances may be different than what is mentioned below. However, the attorneys at Owenby Law, P.A. have experience handling cases involving military divorce and military spouse benefits as well.

What is Considered Marital Property?

In Florida, marital or community property encompasses nearly everything that spouses acquire during their marriage. This definition includes a wide array of assets such as houses, cars, boats, retirement accounts, and stocks. The state operates under the principle of equitable distribution rather than being a community property state. This means that in the event of a divorce, a judge will divide marital assets in a way that is deemed fair, though not necessarily equal, to both parties.

The key factor in determining whether an asset is considered marital property is the timing of its acquisition. Assets and liabilities acquired during the marriage, regardless of which spouse obtained them, are typically classified as marital property. This includes real property held as tenants by the entireties, which is presumed to be a marital asset whether it was acquired before or during the marriage.

Florida's approach aims to ensure a fair distribution of marital assets, taking into account the contributions of both spouses to the marriage and their respective economic circumstances. Non-marital property, such as assets acquired before the marriage or those received as a gift or inheritance by one spouse (and kept separate), are generally not subject to division during a divorce.

What Does Florida Recognize to Be Separate Property?

In most cases, assets accumulated during the marriage are jointly owned. Whether a piece of property is jointly titled or in one spouse's name is immaterial. Some people assume that because they have purchased property with their own money and kept it in their name that they will be able to protect that asset from equitable distribution. Unless that item was purchased using separate property funds, this would not be true.

How Equitable Distribution Works in a Florida Divorce

As we mentioned before, anything that is not determined to be separate property is considered marital property and is subject to equitable distribution. However, this does not mean that all assets must be divided 50/50, nor does it mean that all of the property must be sold for cash to distribute the assets equitably. The parties can agree to divide their property any way they see fit. For instance, consider a husband who is in the military and owns a house.

The wife would be entitled to a portion of his military pension and he and she would each be entitled to 50% of the equity in the home. The wife might waive her claim to the pension in exchange for the equity in the house. It is not necessary for the value of the two items in question to be equal. Most equity bargaining of this nature is negotiated through the spouses' respective divorce lawyers, or it is decided by the court.

When Does Separate Property Become Marital Property?

Separate property can become marital property through various means, a process often referred to as "commingling." This transformation typically occurs under circumstances where the separate property is mixed with marital property to such an extent that it becomes difficult to distinguish one from the other.

Here are some common scenarios in which separate property may evolve into marital property:

• Depositing Inherited Funds into a Joint Account: If one spouse receives an inheritance (which is considered separate property) and then deposits these funds into a joint bank account used by both spouses for household expenses, the inherited money can be considered commingled and thus may be treated as marital property.
• Improvement of Property Using Marital Funds: If one spouse owns a property (like a house) before the marriage, which is considered separate property, but marital funds are used to pay the mortgage, make improvements, or conduct repairs on the property, this can lead to the property being considered marital. The increase in the property's value due to these improvements may also be considered marital property.
• Mutual Effort Increasing the Value of Separate Property: If the value of separate property increases during the marriage due to the efforts or financial contributions of both spouses, this increase in value may be considered marital property. For example, if one spouse owns a business prior to the marriage, but the other spouse contributes to its growth during the marriage, the increase in the business's value might be deemed marital.
• Intertwining of Finances: The general intertwining of the couple’s finances, where separate assets are used and managed in a way that benefits the marriage or both parties contribute towards the separate asset, can blur the lines between what is separate and what is marital property.
• Agreement Between Spouses: Spouses may also agree in writing that a separate asset should be treated as marital property. This is often formalized through prenuptial or postnuptial agreements.

Thinking About Divorce? File with Owenby Law, P.A. at Your Side.

Equitable distribution of property has been known to create difficulties during even the most amicable of divorces. If you are seeking a divorce in Jacksonville or anywhere else in Duval County, don’t wait to retain our firm’s high-caliber family law services. Owenby Law, P.A. has helped thousands of families throughout the local community, so you can trust that your case will be handled with the level of professionalism it deserves.