What Are My Rights in a Florida Divorce?
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Property distribution includes issues of real estate, personal property, cash savings, stocks, bonds, savings plans, and retirement benefits. The statutes that govern property division vary by state, but they can generally be grouped into two types: equitable distribution and community property. Most states follow the equitable distribution method, including Florida. Equitable distribution provides that courts divide assets in a fair and equitable manner but not necessarily equal. In distributing the marital estate, the court presumes a 50/50 division, but that may be altered by factors including the contribution to the marriage by each spouse, including homemaker services, the economic circumstances of the parties, the duration of the marriage, any interruption in career or educational opportunities, the contribution of each spouse to the acquisition, enhancement, and production of income or marital assets, and any action during the pending divorce proceedings which depletes marital assets. Equitable distribution rules give the court considerable discretion in which to divide property between the parties. The courts consider the joint assets held by the parties and separate assets that the parties either brought with them into the marriage or inherited or received as gifts during the marriage. Generally, if the separate property is kept separate during the marriage and not commingled with joint assets, then the court will recognize that it belongs separately to the individual spouse and will not divide it along with the marital assets.
Marital property is generally considered to be all property acquired by a couple during their marriage or earned by either spouse during their marriage. It is all property owned by the marital estate. Generally, gifts or inheritances to either spouse along with any money or property earned prior to the marriage are the separate property of that spouse unless it is somehow "converted" into marital property. Joint property is property with more than one owner. In divorce law, joint property is distinguished from a marital asset, which refers to all property acquired during the course of the marriage, regardless of ownership or who holds the title to it. Marital assets may consist at least partly of joint assets. Joint property may be owned under different forms of ownership. For example, In Florida, unlike most other states, all types of property, including all real property, tangible personal property, and intangible personal property, may be owned by a married couple as tenants by entireties.
In community property states, all property or income acquired by either spouse during marriage is considered equally owned by both spouses for purposes of the division of the property upon death or divorce or for purposes of business transacted by either spouse. California is a community property state. The courts in California will divide the community property of the parties equally after setting aside to each spouse that spouse's separate property. Community property is presumed to be all property acquired by the parties during the marriage and held in joint form. This presumption may be rebutted by a clear statement in the title by which property is acquired that the property is separate and not community property or by proof that the parties have a written agreement that the property is separate property. If a state is not a community property state, various rules and schemes apply to define the nature of marital property. For example, there are a number of legal options from which a couple may choose when they decide to acquire property together. They may choose joint tenancy, tenancy by the entirety, or tenancy-in-common. In most states, the character of the property in question is determined by the nature of the property itself, the nature of the event giving rise to the need for the particular characterization of property ownership, and the manner, agreement, and instrument by which it was acquired. If the event giving rise to the need for the characterization is divorce, a set of rules will apply to each portion of the marital property, depending on how it was acquired and what kind of property it is: bank account, primary home, automobile, etc.
In a proceeding for dissolution of marriage in Florida, the court will set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Separation and property agreements may be entered into before a divorce is filed to be effective when signed, or may be entered into after the divorce is filed. In divorce property division, Florida follows the theory of equitable distribution. In the absence of an agreement, the court will make an "equitable" distribution of the property and assets of the marriage based on the circumstances of the parties.
The following are Florida statutes:
61.075 Equitable distribution of marital assets and
liabilities. —
(1) In a proceeding for dissolution of marriage, in addition
to all other remedies available to a court to do equity
between the parties, or in a proceeding for disposition of
assets following a dissolution of marriage by a court which
lacked jurisdiction over the absent spouse or lacked
jurisdiction to dispose of the assets, the court shall set
apart to each spouse that spouse's nonmarital assets and
liabilities, and in distributing the marital assets and
liabilities between the parties, the court must begin with
the premise that the distribution should be equal, unless
there is a justification for an unequal distribution based
on all relevant factors, including:
(a) The contribution to the marriage by each spouse,
including contributions to the care and education of the
children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational
opportunities of either party.
(e) The contribution of one spouse to the personal career or
educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an
interest in a business, corporation, or professional
practice, intact and free from any claim or interference by
the other party.
(g) The contribution of each spouse to the acquisition,
enhancement, and production of income or the improvement of,
or the incurring of liabilities to, both the marital assets
and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a
residence for any dependent child of the marriage, or any
other party, when it would be equitable to do so, it is in
the best interest of the child or that party, and it is
financially feasible for the parties to maintain the
residence until the child is emancipated or until exclusive
possession is otherwise terminated by a court of competent
jurisdiction. In making this determination, the court shall
first determine if it would be in the best interest of the
dependent child to remain in the marital home; and, if not,
whether other equities would be served by giving any other
party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or
destruction of marital assets after the filing of the
petition or within 2 years prior to the filing of the
petition.
(j) Any other factors necessary to do equity and justice
between the parties.
(2) If the court awards a cash payment for the purpose of
equitable distribution of marital assets, to be paid in full
or in installments, the full amount ordered shall vest when
the judgment is awarded and the award shall not terminate
upon remarriage or death of either party, unless otherwise
agreed to by the parties, but shall be treated as a debt
owed from the obligor or the obligor's estate to the obligee
or the obligee's estate, unless otherwise agreed to by the
parties.
(3) In any contested dissolution action wherein a
stipulation and agreement has not been entered and filed,
any distribution of marital assets or marital liabilities
shall be supported by factual findings in the judgment or
order based on competent substantial evidence with reference
to the factors enumerated in subsection (1). The
distribution of all marital assets and marital liabilities,
whether equal or unequal, shall include specific written
findings of fact as to the following:
(a) Clear identification of nonmarital assets and ownership
interests;
(b) Identification of marital assets, including the
individual valuation of significant assets, and designation
of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and
designation of which spouse shall be responsible for each
liability;
(d) Any other findings necessary to advise the parties or
the reviewing court of the trial court's rationale for the
distribution of marital assets and allocation of
liabilities.
(4) The judgment distributing assets shall have the effect
of a duly executed instrument of conveyance, transfer,
release, or acquisition which is recorded in the county
where the property is located when the judgment, or a
certified copy of the judgment, is recorded in the official
records of the county in which the property is located.
(5) If the court finds good cause that there should be an
interim partial distribution during the pendency of a
dissolution action, the court may enter an interim order
that shall identify and value the marital and nonmarital
assets and liabilities made the subject of the sworn motion,
set apart those nonmarital assets and liabilities, and
provide for a partial distribution of those marital assets
and liabilities. An interim order may be entered at any time
after the date the dissolution of marriage is filed and
served and before the final distribution of marital and
nonmarital assets and marital and nonmarital liabilities.
(a) Such an interim order shall be entered only upon good
cause shown and upon sworn motion establishing specific
factual basis for the motion. The motion may be filed by
either party and shall demonstrate good cause why the matter
should not be deferred until the final hearing.
(b) The court shall specifically take into account and give
appropriate credit for any partial distribution of marital
assets or liabilities in its final allocation of marital
assets or liabilities. Further, the court shall make
specific findings in any interim order under this
section that any partial distribution will not cause inequity or
prejudice to either party as to either party's claims for
support or attorney's fees.
(c) Any interim order partially distributing marital assets
or liabilities as provided in this subsection shall be
pursuant to and comport with the factors in subsections (1)
and (3) as such factors pertain to the assets or liabilities
made the subject of the sworn motion.
(d) As used in this subsection, the term "good cause" means
extraordinary circumstances that require an interim partial
distribution.
(6) As used in this section:
(a)1. "Marital assets and liabilities" include:
a. Assets acquired and liabilities incurred during the
marriage, individually by either spouse or jointly by them.
b. The enhancement in value and appreciation of nonmarital
assets resulting either from the efforts of either party
during the marriage or from the contribution to or
expenditure thereon of marital funds or other forms of
marital assets, or both.
c. Interspousal gifts during the marriage.
d. All vested and nonvested benefits, rights, and funds
accrued during the marriage in retirement, pension,
profit-sharing, annuity, deferred compensation, and
insurance plans and programs.
2. All real property held by the parties as tenants by the
entireties, whether acquired prior to or during the
marriage, shall be presumed to be a marital asset. If, in
any case, a party makes a claim to the contrary, the burden
of proof shall be on the party asserting the claim that the
subject property, or some portion thereof, is nonmarital.
3. All personal property titled jointly by the parties as
tenants by the entireties, whether acquired prior to or
during the marriage, shall be presumed to be a marital
asset. In the event a party makes a claim to the contrary,
the burden of proof shall be on the party asserting the
claim that the subject property, or some portion thereof, is
nonmarital.
4. The burden of proof to overcome the gift presumption
shall be by clear and convincing evidence.
(b) "Nonmarital assets and liabilities" include:
1. Assets acquired and liabilities incurred by either party
prior to the marriage, and assets acquired and liabilities
incurred in exchange for such assets and liabilities;
2. Assets acquired separately by either party by
noninterspousal gift, bequest, devise, or descent, and
assets acquired in exchange for such assets;
3. All income derived from nonmarital assets during the
marriage unless the income was treated, used, or relied upon
by the parties as a marital asset;
4. Assets and liabilities excluded from marital assets and
liabilities by valid written agreement of the parties, and
assets acquired and liabilities incurred in exchange for
such assets and liabilities; and
5. Any liability incurred by forgery or unauthorized
signature of one spouse signing the name of the other
spouse. Any such liability shall be a nonmarital liability
only of the party having committed the forgery or having
affixed the unauthorized signature. In determining an award
of attorney's fees and costs pursuant to s. 61.16, the court
may consider forgery or an unauthorized signature by a party
and may make a separate award for attorney's fees and costs
occasioned by the forgery or unauthorized signature. This
subparagraph does not apply to any forged or unauthorized
signature that was subsequently ratified by the other
spouse.
(7) The cut-off date for determining assets and liabilities
to be identified or classified as marital assets and
liabilities is the earliest of the date the parties enter
into a valid separation agreement, such other date as may be
expressly established by such agreement, or the date of the
filing of a petition for dissolution of marriage. The date
for determining value of assets and the amount of
liabilities identified or classified as marital is the date
or dates as the judge determines is just and equitable under
the circumstances. Different assets may be valued as of
different dates, as, in the judge's discretion, the
circumstances require.
(8) All assets acquired and liabilities incurred by either
spouse subsequent to the date of the marriage and not
specifically established as nonmarital assets or liabilities
are presumed to be marital assets and liabilities. Such
presumption is overcome by a showing that the assets and
liabilities are nonmarital assets and liabilities. The
presumption is only for evidentiary purposes in the
dissolution proceeding and does not vest title. Title to
disputed assets shall vest only by the judgment of a court.
This section does not require the joinder of spouses in the
conveyance, transfer, or hypothecation of a spouse's
individual property; affect the laws of descent and
distribution; or establish community property in this state.
(9) The court may provide for equitable distribution of the
marital assets and liabilities without regard to alimony for
either party. After the determination of an equitable
distribution of the marital assets and liabilities, the
court shall consider whether a judgment for alimony shall be
made.
(10) To do equity between the parties, the court may, in
lieu of or to supplement, facilitate, or effectuate the
equitable division of marital assets and liabilities, order
a monetary payment in a lump sum or in installments paid
over a fixed period of time.
(11) Special equity is abolished. All claims formerly
identified as special equity, and all special equity
calculations, are abolished and shall be asserted either as
a claim for unequal distribution of marital property and
resolved by the factors set forth in subsection (1) or as a
claim of enhancement in value or appreciation of nonmarital
property.
61.076 Distribution of retirement plans upon dissolution
of marriage. —
(1) All vested and nonvested benefits, rights, and funds
accrued during the marriage in retirement, pension,
profit-sharing, annuity, deferred compensation, and
insurance plans and programs are marital assets subject to
equitable distribution.
(2) If the parties were married for at least 10 years,
during which at least one of the parties who was a member of
the federal uniformed services performed at least 10 years
of creditable service, and if the division of marital
property includes a division of uniformed services retired
or retainer pay, the final judgment shall include the
following:
(a) Sufficient information to identify the member of the
uniformed services;
(b) Certification that the Servicemembers Civil Relief Act
was observed if the decree was issued while the member was
on active duty and was not represented in court;
(c) A specification of the amount of retired or retainer pay
to be distributed pursuant to the order, expressed in
dollars or as a percentage of the disposable retired or
retainer pay.
(3) An order which provides for distribution of retired or
retainer pay from the federal uniformed services shall not
provide for payment from this source more frequently than
monthly and shall not require the payor to vary normal pay
and disbursement cycles for retired or retainer pay in order
to comply with the order.
732.216 Short title. —
Sections 732.216-732.228 may be cited as the "Florida
Uniform Disposition of Community Property Rights at Death
Act."
732.217 Application. —
Sections 732.216-732.228 apply to the disposition at death
of the following property acquired by a married person:
(1) Personal property, wherever located, which:
(a) Was acquired as, or became and remained, community
property under the laws of another jurisdiction;
(b) Was acquired with the rents, issues, or income of, or
the proceeds from, or in exchange for, community property;
or
(c) Is traceable to that community property.
(2) Real property, except real property held as tenants by
the entirety, which is located in this state, and which:
(a) Was acquired with the rents, issues, or income of, the
proceeds from, or in exchange for, property acquired as, or
which became and remained, community property under the laws
of another jurisdiction; or
(b) Is traceable to that community property.
732.218 Rebuttable presumptions. —
In determining whether ss. 732.216-732.228 apply to specific
property, the following rebuttable presumptions apply:
(1) Property acquired during marriage by a spouse of that
marriage while domiciled in a jurisdiction under whose laws
property could then be acquired as community property is
presumed to have been acquired as, or to have become and
remained, property to which these sections apply.
(2) Real property located in this state, other than
homestead and real property held as tenants by the entirety,
and personal property wherever located acquired by a married
person while domiciled in a jurisdiction under whose laws
property could not then be acquired as community property
and title to which was taken in a form which created rights
of survivorship are presumed to be property to which these
sections do not apply.
732.219 Disposition upon death. —
Upon the death of a married person, one-half of the property
to which ss. 732.216-732.228 apply is the property of the
surviving spouse and is not subject to testamentary
disposition by the decedent or distribution under the laws
of succession of this state. One-half of that property is
the property of the decedent and is subject to testamentary
disposition or distribution under the laws of succession of
this state. The decedent's one-half of that property is not
in the elective estate.
732.225 Acts of married persons. —
Sections 732.216-732.228 do not prevent married persons from
severing or altering their interests in property to which
these sections apply. The reinvestment of any property to
which these sections apply in real property located in this
state which is or becomes homestead property creates a
conclusive presumption that the spouses have agreed to
terminate the community property attribute of the property
reinvested.
