When a Florida court looks at dividing property in a divorce, most of the division occurs in property that was acquired during the marriage, what we call “marital property.” Property acquired before marriage, or what we call “separate property,” is rarely touched.
There are some exceptions, where property acquired during the marriage is considered separate property. Inheritance and punitive damages in a personal injury lawsuit are the straightforward type of property which is “separate” even if acquired during marriage. Gifts from a third party to only one spouse are also separate, but most authorities agree that the fact that it is given to only one party needs to be documented, and gifts from the parents of one of the spouses during the marriage are considered marital property as the gifts were given to the two of them as a (then) couple.
Appreciation of marital property which was not the result of the other spouse’s efforts is also separate. A good example of that is stocks and real estate prices that rise due to the market. Appreciation of a business-type property is considered to be the result of the other spouse’s efforts, even if the other spouse did not do much in the marriage.
Some of the non-obvious types of property subject to division in a Florida divorce are: pension, professional degree or license, professional practice or business. A pension is only split if it is vested during the marriage. Vesting of a pension typically occurs after five years of work. If a pension has not yet matured during the marriage, a Qualified Domestic Relations Order is issued to the pension provider to disburse a percentage of the pension to the divorced spouse once the benefits mature.
In dividing property in a divorce a court does not always do a 50/50 split. In many cases the distribution is more like 70/30, and in some it’s 0/100. This is especially true if you consider other factors such as alimony and child support.
The most important factor the court looks at is the duration of the marriage. If the parties were married for a short time, property is often returned to the way it was before the marriage. Marriages over five years are considered a “marriage of long duration,” and the split of marital property is 50/50 or more.
The spouse with less income often requests that the court consider their the age, health, and earning capacity and give them a bigger share of the property, claiming that they are not so young as to re-enter the workforce in full capacity and therefore depend on the property distribution in a divorce to maintain their lifestyle. High alimony does not necessarily diminish the share of the spouse who receives alimony, but sometimes it does.
If the parties own a house or an apartment and one of the parties has full custody of the children, that person usually requests an exclusive right to occupy the marital residence until the youngest of the children turns 21. Depending on how long that is, the other spouse responds that some property distribution should be offset to compensate them for the loss use of the property.
This was a short summary of how property division works in a Florida divorce. If you would like to discuss your divorce with me, call my office and set up an appointment, and I’ll be happy to speak with you.