Like most states, Florida uses equitable distribution rules to divide marital assets and liabilities during divorce or legal separation. Florida courts consider everything acquired during a marriage to be marital property when dividing property. During a divorce case, courts divide the marital estate fairly, but not always 50/50.
Marital property and non-marital property become important twice during a marriage. One is in the event of a divorce. The other is if one spouse dies intestate, that is, without a will. In Florida, if someone dies without a will, their spouse receives at least half the estate (or all, if there are no surviving children). An intentionally omitted spouse may still claim 30% of the elective share of the estate (Fla. Stat. §732.201).
States have differing laws on how marital and non-marital assets are divided during a divorce settlement. In community property states, judges divide marital property 50/50. If one person wants to keep a specific item, such as the marital home, the other must give up an equal share of funds. Nine states have community property laws determining the division of debt and property in a divorce: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
The other states, including Florida, are equitable distribution states. In these states, the division of marital assets follows marital property laws. Judges divide marital property equitably, but an unequal distribution is possible if the economic circumstances warrant it.
For more information on this topic, visit FindLaw’s divorce and property section.
Marital Property vs. Separate Property
If a divorcing couple does not have a settlement agreement when they come to court, the judge divides the property according to Florida law. There is a presumption that all marital property division should be equal unless there’s evidence it should be otherwise.
Under Florida State statute §61.075, marital property includes:
Assets acquired during marriage: This includes assets titled in one spouse’s name and purchased with separate funds
Enhancement in value of non-marital assets: If separate property becomes more valuable during the marriage, the appreciation in value becomes part of the marital property; other rules consider whether the enhancement was due to active labor by the couple, marital money investment, or passive appreciation such as interest
Gifts between spouses during marriage
Real and personal property held as “tenants in the entirety”: Florida, unlike some states, still titles marital real estate as held by “tenants in the entirety”; any such property is presumptively marital property
Vested and non-vested retirement accounts and insurance plans
Separate property is property not included in the marital estate and not subject to property division during divorce. Separate property is everything the individuals acquire before the marriage and includes:
- Assets purchased before marriage
- Gifts, inheritances, or bequests from third parties
- Income from non-marital assets: In most cases, this means “passive income,” such as rental income, interest, and other funds received without active work by the recipient
- Assets excluded with a valid prenuptial agreement: Parties may exclude any item or income source with a valid prenup or postnuptial agreement; courts will honor these agreements if they follow Florida statutes
Liabilities and Debts
The same rules used for dividing marital property also divide marital debt. Non-marital liabilities and debts acquired before the marriage belong to the spouse who acquired them. Debts incurred during the marriage are marital debts and are divided equitably between the parties.
Florida Marital Property Laws
As an equitable distribution state, Florida courts use many factors when deciding how to divide marital funds. Some things that may affect the division of property include:
- Age and health of the spouses
- Duration of the marriage
- Contribution of each spouse to the marriage
- Commingling (mixing) of separate property with marital assets
- Whether one spouse contributed to the education or career of the other spouse (e.g., monetary support, working while they went to school, etc.)
- Child custody agreements and the need or desirability of maintaining the family home in the best interest of the child
- Prenuptial or postnuptial agreements
Fault (adultery, domestic violence, marital waste) does not directly affect property distribution. The judge may consider the secondary effects of fault in the division of property. For instance, if one spouse had to quit their job and move out of the home because of domestic violence, the judge could include lost wages in the property division.
Related Resources for Marital Property Laws
If you’re going through a divorce or want to know your property rights during a marriage, you should talk to a Florida divorce attorney.