Regardless if individuals are debating about whether it’s time to end a marriage or if they are in the midst of the divorce process, chances are they have a whole host of questions.
Those pertaining to property division, such as retirement benefits, are often pondered.
Many likely believe that property and assets are simply split down the line between parties.
This is a common misnomer.
Some states do split property 50/50, but not in Florida.
Florida law calls for what is known as equitable division. Courts begin with the proposition that assets are to be divided 50-50 in a divorce, but are nevertheless free to deviate from this proportion upon consideration of multiple factors.
So, as a result, courts split property fairly, not equally.
Such property that is split fairly is marital property and courts must first determine the property that falls under this category before making any determinations.
Understanding separate property
Separate property is not part of the marital estate that courts consider splitting. It is basically any asset or debt owned by a spouse prior to the marriage. The only exception to this rule would be the existence of a clause in a valid prenuptial agreement calling for division of certain separate property upon divorce.
Outside of assets or debts owned before the marriage, separate property also includes:
- Property acquired by inheritance
- Property acquired as a gift during the marriage (excluding gifts from the soon-to-be ex-spouse)
- Income derived from separate property (absent comingling of assets)
Marital property subject to equitable distribution
Alternately, marital property is property that will be divided upon divorce and subject to equitable division.
Such property is classified as any asset or debt acquired by the spouses during the marriage, regardless of title. In general, marital property includes:
- Real property
- Personal property
- Business interests
- Cash, stocks and bank accounts
- Employee benefits, including profit-sharing, retirements accounts deferred compensation
- Separate property that a spouse has transformed into marital property by virtue of changing title
- Mortgage debt, credit card debt and auto loan debt
Factors that complicate matters
While this may seem relatively straightforward, the reality is that certain situations can create complications.
For instance, what about retirement benefits or real property owned before marriage, but which have appreciated in value during the course of the marriage? Similarly, how about marital funds that have been mixed with separate property?
These and many others often arise in a divorce.
Obtaining the assistance of a skilled legal professional to help in individual circumstances can drastically reduce any conflicts that could arise during the process.