Division of Assets & Property in a Florida Divorce

Marital or non-marital: the question that decides the case

Before anything is divided, every asset and debt gets sorted into one of two buckets.

Marital generally means acquired during the marriage, regardless of whose name is on the title. It includes the home, vehicles, bank and brokerage accounts, the portion of retirement accounts and pensions earned during the marriage, business interests, and the debts incurred along the way.

Non-marital generally means property owned before the marriage, and gifts or inheritances received by one spouse individually, plus assets a valid prenuptial agreement has designated as separate.

Florida applies a presumption that anything acquired during the marriage is marital. A spouse claiming an asset is separate bears the burden of proving it.

Commingling and the tracing problem

The clean line above dissolves quickly in real life. An inheritance deposited into a joint checking account may lose its separate character. A house owned before the marriage that gets refinanced into both names, or improved with marital income, can become partly or wholly marital.

The tool for sorting this out is tracing, which means following the money through account statements and closing documents to establish where it came from. Tracing is document-intensive, and it is where a great deal of value is won or lost. Records also become harder to obtain as time passes, which is why a separate-property claim is worth raising early.

A related concept is enhancement in value. If a non-marital asset increased in value during the marriage because of marital labor or marital funds, as when a spouse works in a business they owned before the wedding, that increase can itself be a marital asset even though the underlying asset is not.

When an equal split is not the outcome

The statute begins from equal division and permits a judge to depart from it with written findings. Recognized grounds include one spouse’s contribution to the marriage or to the other’s career and education, the desirability of keeping an asset such as a business intact, the interruption of a spouse’s career, and the intentional dissipation of marital assets, meaning money wasted, gambled, hidden, or spent on an affair within roughly the two years before filing.

Assets that need particular care

• The marital home. Options are sale and division of proceeds, one spouse buying out the other, or a deferred sale, sometimes tied to the children finishing school. Any buyout has to account for whether the remaining spouse can refinance.
• Retirement accounts and pensions. Only the portion accrued during the marriage is marital. Dividing an employer plan usually requires a qualified domestic relations order, and getting that document right protects the transfer from being treated as a taxable distribution.
• Closely held businesses. These require valuation, and the valuation method chosen can swing the number dramatically. Expect a forensic accountant in any case where a business is a significant part of the estate.
• Debt. Marital debt is divided along with assets. Note that a divorce decree binds the two spouses but not their lenders. Where a name stays on a joint loan, the creditor can still pursue that person regardless of what the judgment says.

What these cases are built on

Equitable distribution is a documentation exercise before it is an argument. The records that carry the most weight are statements for every account, the last several years of tax returns, deeds and mortgage documents, and any paper trail establishing that an asset arrived by gift or inheritance.

Florida courts also look closely at what happens to marital assets once a divorce is contemplated. Money moved, accounts closed, or property transferred during that period can be treated as dissipation and accounted for in the final distribution. Where a filing is near, that is worth raising with a lawyer before anything is done.