With the exception of concerns about minor children, concerns about the division of marital assets are among the most common questions people have when considering a divorce. Florida is among the majority of states that apply the equitable distribution standard to divorces.
Equitable distribution focuses on fairness, although the courts typically only divide assets they consider marital during property division proceedings. While you likely can’t predict the exact outcome of a divorce unless you have a prenuptial agreement that the courts uphold, you could get an idea of the likely outcome if you determine which of your assets are marital and which will remain separate property.
How do the courts define separate property?
Separate property consists primarily of assets that you owned prior to marriage, assets that you received in a certain manner before or during the marriage, and assets that you and your spouse already agreed would remain solely yours in the event of a divorce.
It is common for people to agree to exclude certain assets from property division if they create a prenuptial or postnuptial agreement with their spouse. Items that you owned prior to marriage will often remain your separate property during marriage and in the event of a divorce. Items that you receive through inheritance or gift-giving may also remain your separate property.
However, commingling or sharing those assets with your spouse, especially if you give them control over the asset or involve them in its maintenance and upkeep, might render what would otherwise be separate property into marital property in the eyes of the courts.
What is marital property under Florida law?
Now that you have an idea of what might be your separate property, you likely want to know what will make up the pool of marital assets. For most couples, almost everything that they acquire and earn throughout the marriage will be marital property that the courts can divide in the event of a divorce.
In some cases, an asset might be both marital and separate. For example, if you owned the house and had paid part of the mortgage before your spouse moved in, they can likely only claim the amount of equity you accrue during the marriage as shared property. The same would be true of a retirement account that had contributions predating your marriage. Determining the marital and separate values of these assets will help you advocate for yourself during a divorce.
