Dividing Property During Divorce: What’s Fair and What’s Yours

Divorce is not just an emotional turning point; it is a financial one, too. One of the most significant sources of stress during a divorce is figuring out who gets what. From homes and bank accounts to businesses and even debt, it all has to be sorted out before the divorce decree. In most divorce cases, property division is the most contentious part of the process, especially when spouses feel entitled to the same assets. Florida law provides a framework for dividing property during divorce. Unfortunately, what may seem fair to you may not be what is in accordance with the law. 

At the Loris Law Group, we help clients navigate this process with clarity and confidence. Whether your case involves complex financial issues or seems relatively straightforward, we can help you protect what is yours and avoid costly mistakes. 

First Step: Is it Marital Property or Non-Marital Property?

In Florida, only marital property is divided during a divorce. Therefore, classifying what is marital property and what is not is the first crucial step. 

Generally, marital property includes assets and debts accumulated by either spouse during the marriage, whether jointly or individually. Marital property can consist of income earned, real estate purchased, vehicles, credit card debt, and even certain employment benefits.

Marital property may also include assets that were once separate but became marital over time. For example, if one spouse owned a home before the marriage, but marital funds were used to pay down the mortgage, the value of the property, or a portion of it, may be considered marital. In the same vein, if marital funds or effort increased the home's value, say, through renovations paid for during the marriage, the property may be considered marital property.

Gifts exchanged during the marriage, property held jointly, and retirement benefits earned during the marriage may also be considered marital. 

According to Florida law, there is a specific cutoff date for when property ceases to be considered marital property. That date is usually when one spouse files for divorce, unless a valid separation agreement establishes an earlier date. 

What Counts as Separate Property in Florida?

Separate or non-marital property includes assets or debts acquired before the marriage or after the cutoff date, as well as inheritances or gifts received by only one spouse from someone other than their soon-to-be ex. Non-marital property stays with the spouse who owns it. Prenuptial and postnuptial agreements can also define what remains separate, provided they are valid and properly executed. 

Can Separate Property Become Marital Property?

Yes, and it happens more often than people actually realize. The most common reason for this is comingling. When separate funds are mixed with marital funds in a way that makes them indistinguishable, the court may treat the entire asset as marital. 

For example, if you deposit your inheritance into a shared checking account or use it to pay joint expenses, it can be converted into marital property. To preserve your property, you have to keep your assets legally and practically separate.

Florida’s Equitable Distribution

Once you know what's yours, the next step is understanding how Florida courts ensure property is divided fairly. Florida follows the equitable distribution principle. This ensures division is fair, but not necessarily equal. 

The courts consider several factors, such as:

• Each spouse’s contributions to the marriage include income, homemaking, child care, and career sacrifices.

• The length of the marriage; longer marriages tend to have more intertwined finances.

• Economic circumstances, like financial needs after divorce, employability, and earning potential.

• The spouse who will have primary responsibility for the children.

• Whether one of the spouses wishes to retain any asset, such as a business or professional practice.

• Whether either spouse intentionally wasted or hid assets within two years of the divorce filing, as well as how marital debts should be allocated.

  
  

Are There Situations Where a 50/50 Split Happens in Florida?

While a 50/50 equal division of marital property is not guaranteed in Florida, a court may determine that an equal split is fair in certain situations. In our experience, this typically happens when both spouses entered and exited the marriage on relatively equal footing.

For example, when both parties earn comparable incomes and contribute similarly to the household, either financially or otherwise, a 50/50 division may be considered equitable. These situations are rare but do happen. 

Another common scenario involves short-term marriages. If the marriage did not last long and the couple did not significantly combine finances, acquire complex assets, or make significant career sacrifices, property may be divided evenly or minimally adjusted.

A 50/50 split generally happens when both spouses can reasonably maintain a similar standard of living after the divorce, without placing one party at a financial disadvantage. 

Can Spouses Decide Property Division Themselves?

Yes, and judges generally prefer when couples handle property division this way. You can negotiate a marital settlement agreement with your spouse that outlines how assets and debts will be divided. As long as the agreement is lawful and fair, the court can approve it.

Settling outside of court actually has several benefits. You have more control over the outcome, you may save time and reduce conflict. That said, even an uncontested divorce significantly benefits from legal guidance. Once a settlement is signed and approved, it becomes challenging to undo.

An experienced attorney can review the agreement, highlight potential issues, and ensure you’re not relinquishing your rights, overlooking tax consequences, or overlooking hidden debts or long-term risks related to specific assets.

Additionally, an experienced attorney understands how Florida law treats different assets and can help you negotiate from a position of strength and avoid costly surprises. 

We are Here to Help

Dividing property during divorce can feel overwhelming, especially when emotions and finances are involved.  At the Loris Law Group, our experienced family law attorneys can help you understand your rights, protect your assets, and pursue fair results. Whether you are negotiating a settlement or preparing for litigation, we take the time to understand your goals and your financial picture. Property division decisions can shape your future for many years to come. So, instead of leaving your future to guesswork or pressure, contact us today to schedule a consultation and let us guide you through the process with clarity, strategy, and confidence.