It’s settled. You and your spouse are getting divorced. So now what happens to all of the “stuff?” Here comes the legal answer that everyone loves to hear, “It depends.” In Florida, a court will engage in a process called “equitable distribution” to determine what happens to the assets and debts that were acquired/incurred during the marriage. We need to consider the different categories of “stuff” that we’re talking about.
During your divorce, a court will first identify all nonmarital assets and liabilities belonging to you and your spouse and set those aside to the appropriate party. The term “nonmarital” is defined by statute and includes each spouse’s premarital property and other nonmarital assets that are acquired during the marriage and not commingled. The property that you had before you got married is appropriately called “premarital” property. Such assets are not considered marital and are not subject to equitable distribution by the court. So that prized Martin guitar that your grandfather passed down to you is still yours, and you will be free to pass down to your kids that beautiful vintage furniture that your mother gave you when you moved away to college. Also considered nonmarital are any inheritances, gifts, or bequests that you received during the marriage from someone other than your spouse, and any income derived from those assets. Under Florida law, the inheritance that you received from your uncle is your nonmarital asset, regardless of when it was received, assuming you did not commingle these funds with marital assets (like the income that you earn from your day job).
Nonmarital assets must be kept separate from marital assets to retain their nonmarital designation. If a nonmarital asset has been “commingled” with marital assets, it is possible that it has lost its classification as nonmarital. A court will consider several factors to determine whether nonmarital property has been commingled to the extent necessary to constitute a “gift to the marriage.” Such factors will include legal title, access to the property, control of the property, and the parties’ intent, to name a few.
Once the nonmarital assets and liabilities have been set aside, all of your marital assets and liabilities will be valued and equitably distributed by the court. What constitutes a “marital” asset or liability is also defined by statute and includes: any assets acquired during the marriage by either of you separately or jointly, increases in value to those assets and to nonmarital assets due to marital efforts or funds, and gifts from one spouse to the other during the marriage. So, for example, the house that you and your spouse purchased together during your marriage is a marital asset. If you and your spouse lived in a house that you owned prior to the marriage and spent time and money “flipping” that house, then the increase in value to that home will likely be a marital asset.
“Equitable” does not necessarily mean equal, so the notion that everything will be split right down the middle is inaccurate. There are a number of factors that can influence whether a court will order an unequitable distribution of marital assets or liabilities. These factors are numerous and very case-specific, so it is important to discuss your particular situation with a knowledgeable Sarasota family law attorney.
If you and your spouse executed a pre- or postnuptial agreement, that agreement probably set forth how you and your spouse intended for certain assets to be distributed in the event of a divorce. A number of factors affect whether such an agreement is valid and enforceable in Florida. If you have a pre- or postnuptial agreement, be sure to discuss this with your attorney, as it can have a dramatic influence on the distribution of assets in your divorce.
Divorce Attorney Sarasota
The Sarasota divorce lawyers at Loftus Law are knowledgeable about the intricacies involved in property distribution in a divorce proceeding. They are ready to assist you with your legal questions and family law matters.