One of the biggest points of contention when a couple divorces is the division of property or marital assets. Every state has its own laws governing how property will be distributed or divided in the event of a divorce, including Florida. In our state, when a married couple makes the decision to divorce the division of property is based on a system referred to as "equitable distribution."
Equitable distribution is based on the idea that both property and debts should be divided in a way that is fair to both spouses according to the circumstances. However, it is important to note that what is deemed fair by the courts does not mean the distribution will always be equal for both spouses in terms of property, assets, or financial value.
There are many factors that come into play in regards to property division and how the judge determines distribution. Under Florida law, the process of dividing property begins on the premise that assets will be divided equally between both spouses unless a judge determines unequal distribution is justified. Some of the factors that may impact the judge's decision include:
A judge may consider the above or any other factors he or she believes is relevant to how property should be distributed upon the dissolution of the marriage.
What is marital property, and what property is subject to equitable distribution? When a couple divorces in Florida, not all property is subject to equitable distribution. Prior to the division of property, the property of each spouse is determined to be either separate property or marital property by being inventoried. In general, separate property includes assets each spouse owned prior to getting married, while marital property includes the assets either spouse acquired during the marriage, although exceptions may apply in certain cases. Separate property is not generally subject to equitable distribution, while marital property is.
Spouses who divorce have the option of negotiating the division of property themselves, known as a property settlement agreement. This can be done without a judge's intervention in Florida, however you may want to consult with a divorce attorney should you decide to negotiate a settlement out of court. Spouses who can come to an agreement on the division of property often avoid the cost of litigation and time required to divide property in court, and have a greater degree of control. If you cannot come to an agreement through negotiating, it will be necessary to have a judge resolve the issues. Either way, it is advised to have an experienced divorce lawyer who can help ensure you are treated fairly when it comes to the division of property.