Figuring Out Property Division in Divorce

Part of a couple’s effort to build a life together includes acquiring property that speaks to the couple’s success and affection for one another. The longer a couple is married obviously affects the variety and amount of property they own together, and will represent the couple’s hard work and sacrifice. Having to split these assets during divorce is often a hard reality for parties to accept, but absent a prenuptial agreement, some amount of property division will occur. When people typically think about dividing property in divorce, houses, cars, and retirement benefits are the first things that come to mind, but any asset of value can fall within the definition of marital property, including more personal items like books and artwork. While the parties are always free to craft their own property settlement, a court will review the terms for fairness, and, in the absence of an agreement, divide all marital property according to the rules of Florida law.

Equitable Division

Property division in divorce starts from the premise that all marital property should be divided equally between the spouses, unless there is evidence that justifies an unequal division. Examples of issues that could impact the balance of property division are adultery and dissipation of assets by one spouse. Courts evaluate whether equal distribution is appropriate on a case-by-case basis, and use a number of factors to complete this analysis. These factors include:

• the contributions of each spouse to the marriage, including childcare and household services;
• the length of the marriage;
• the economic resources of each party;
• interrupting educational or career pursuits of one spouse for the benefit of the other spouse;
• the contribution of each spouse to increases in value of marital property, and the accumulation of liabilities; and
• the wishes of either spouse to keep the family home for the benefit of a minor child.

Note that both assets and liabilities are divided in divorce, but if one spouse is mainly responsible for the accumulation of debt, the court could leave him/her with the bulk of these obligations.

Marital Property

Now that there is a basic understanding of how property is divided, the next important piece in this issue is figuring out which property is subject to distribution. As noted above, all marital property is divided in divorce. Marital property includes:

• all assets and liabilities acquired by either spouse during the marriage;
• non-marital property that increased in value during the marriage due to the efforts of either spouse or the use of marital funds;
• gifts between spouses during the marriage;
• all vested and unvested benefits and interests in retirement funds, life insurance, and pensions;
• real property jointly owned by the spouses; and
• personal property jointly owned by the spouses.

Determining whether an asset qualifies as marital property is fairly clear in most divorce cases, but one area that may be less clear is interspousal gifts.  All gifts received from a spouse are automatically labeled as marital property, but the law permits a party to dispute this assumption by presenting “clear and convincing” evidence to the contrary. This standard of proof requires a party to present enough evidence that shows his/her contention is more likely true than not.

Retirement Plans

Finally, given the importance of retirement plans in a person’s overall long-term financial stability, it is natural to wonder what happens to these assets following divorce. Any interests or benefits in these funds that accrue during a marriage are considered marital assets and subject to distribution. In addition, military benefits amassed by active military personnel are also open to division if the marriage lasted 10 years or more.

Talk to a Florida Divorce Attorney

If you are in the midst of getting divorced and have questions about which property you are entitled to receive, talk to a divorce attorney to learn your rights. There are many legal nuances not covered here that affect how property is divided. The Tampa Bay law firm All Family Law Group, P.A. has extensive experience in all facets of divorce cases, and can help you receive a fair property settlement.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Resource:

leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.075.html