An Overview Of The Property Division Process During A Florida Divorce

If divorcing spouses disagree on property division, a judge must identify marital assets, honor prenuptial agreements and order an equitable distribution.

Dividing marital property can be a huge concern, financially and emotionally, for people divorcing near Orlando. Unfortunately, many spouses don't know what to expect during this process or even misunderstand their rights to marital property under state law. To avoid an inequitable settlement or other adverse outcomes, spouses can benefit from understanding the following elements of the marital property division process.

Choosing a process

The nature of the property division process depends largely on whether spouses are completing a contested or uncontested divorce. If a divorce is uncontested, spouses can reach their own agreement regarding the distribution of assets as well as debts. However, in a contested divorce, a family law court must take several steps to identify an equitable distribution of marital property.

Categorization of property

First, the court must determine which property is marital and which property is separate. Under the 2015 Florida Statutes, property is considered separate if a spouse acquired it before marriage, as an inheritance or as a gift from someone besides the other spouse. Property purchased with separate property and proceeds derived from separate property are also usually considered separate property. All other assets and debts that a couple acquires while married are considered marital.

Impacts of prenuptial agreements

When classifying and dividing property, family law courts also must consider whether the divorcing spouses signed a premarital agreement. These agreements can dictate which property is classified as separate or how marital property is divided during a divorce. Family law courts generally must honor the provisions of a premarital agreement, unless the agreement is unconscionable, was signed under duress or was revoked via a written agreement between spouses.

Equitable distribution

If a couple lacks a premarital agreement, or if this agreement does not address the division of marital debts and assets, then all marital property must be distributed equitably. Family law courts take several factors into account to identify an equitable arrangement, including:

  • Each spouse's role in the marriage and contributions to marital property
  • Each spouse's financial circumstances and the impact of any domestic roles or duties on a spouse's earning power
  • Either spouse's role in incurring marital liabilities or dissipating assets
  • Any contributions that one spouse made to the other's career or earning power
  • The length of time that the spouses were married
  • The benefits of distributing a particular asset, such as the family house or a business, to one spouse

The court may also review any other factors that it considers relevant in order to reach a fair and balanced settlement.

Seeking reasonable settlements

During the property division process, there are several steps that spouses can take to protect their interests. These include checking that all marital assets have been accounted for and presenting their own financial needs and marital contributions accurately. Since both tasks may be difficult for people who lack legal experience, many spouses may benefit from consulting with an attorney. An attorney may be able to offer advice on inventorying assets, documenting personal circumstances and pursuing a more favorable division of property.