Dividing Property in a Florida Divorce
Attorney Howard Iken discusses property division in a Florida divorce
Asset and Debt division in Florida is called Equitable Distribution. One of the basic concepts is a ‘starting point” for dividing assets and debts. The means a court will initially take a certain position and then fine tune that position by looking at numerous exceptions and fine points.
Some Basic Principles of Property Division
- If an asset or debt was created during the marriage – it is divided in half
- If an asset or debt was created before the marriage – the whole thing goes to one spouse
- If an assets was inherited or received as a gift – the whole thing goes to that spouse
- If an asset was purchased during the marriage, and a large sum of pre-marital money was used, that spouse could claim a larger share of the asset.
In a Florida divorce, property division begins at 50/50. Division of debts begins at 50/50. But property division is also called equitable division in Florida. The key is the word “equitable.” This means the court is allowed to decide these issues in a way that brings fairness to the outcome. Sometimes this means the split will not be 50/50. A good example is in alimony situations. If one spouse does not have income earning capability, the court may compensate by awarding a larger proportion of assets. Click on each category above to learn more how the court treats certain types of assets.
Divorce can be the single most important event in your life. Make sure you gather lots of information so you can make informed decisions. Many people can benefit from the advice of a good, honest, loyal divorce attorney. The Divorce Center can provide a divorce attorney that can help you protect yourself. A lawyer is not an expense in a divorce case – they are an investment. We help clients in Hernando County, Pasco County, Pinellas County, and Hillsborough County. Our service area includes Orlando, Kissimmee, Tampa, Clearwater, Largo, New Port Richey, Brooksville, Dade City, and the New Tampa area. CONTACT US NOW or call 800-469-3486 Find us on Google
Who Gets the House in a Divorce?
The largest asset you will divide is the family home. And frequently the family home is the most contested asset. During the real estate downturn, most family homes had negative equity. Getting the house was not a desirable thing. But houses have begun to show equity since that time. And not only are houses a desirable assets – but they can also weigh in on a child custody decision.
Some basic realities of how courts distribute marital homes
- Chances are the person who receives custody of the children will retain use and/or ownership of the marital home. Or at least this has become an important factor in the overall decision.
- If there are no children, the person who moves out first or during separation has the disadvantage. A common myth is that someone who moves out has “abandoned” the home and has no claim to it. That myth is untrue. You never give up your right to marital assets. But moving out of the home may affect which spouse ends up with the home. Rest assured that courts will normally compensate by giving more of an asset or less of a debt to compensate.
- The person who can show strong attachment to the home may prevail. This could be the person who owned the home prior to marriage or the person who worked on the home the most. Again, see the above explanation about the myth of abandonment.
- The spouse who can financially manage their own new residence is the least likely to gain control of the family home. That is a practical consideration. Everyone deserves some way to establish or keep their own residence.
- NEVER settle for a guess as to the value of the family home. Always get a professional appraisal. A professional appraisal is not free but the accurate value prevents either spouse from accepting an unfair deal. This is a practical consideration that is frequently ignored.
A major issue in many divorce is whether property is belongs to both marital partners, or is the property of only one person.
Two of the major myths of property division
* It does not matter if only one person is on the title or deed. A judge can change that with one stroke of a pen. Any asset created during the marriage is subject to division.
* It does not matter if only one person is listed on a debt. A judge can redistribute responsibility for that debt. Many spouses have separate credit cards in their sole name. That fact does not limit a judge’s ability to divide debt.
Rules of thumb to determine whether the equity in the home is marital or non marital:
- A home purchased prior to the marriage will probably be the property of the person who owned it before marriage.
- A home purchased during the marriage is joint property and will be divided at sale.
- Even if the home is non-marital, appreciation of the property that happens during the marriage may be marital property. The appreciation can be calculated by an appraiser and the number can be used during divorce proceedings. The question to be addressed is whether the efforts of either spouse resulted in an increase in value. There is no black and white answer and the outcome of this issue is usually disputed.
- Recently the Florida Supreme Court decided there are situations where a home purchased prior to the marriage may be marital property.
This is one of the most complex areas of law for a do-it-yourself person to tackle. If you have a large amount of equity in your home, you will always come out ahead by hiring an attorney. If the home is marital property, and the fact that it is marital is not disputed by either spouse, there is less danger in a do-it-yourself divorce.
401K Plans – IRA – Retirement Plans – In Divorce
In a long term marriage – ten years or more, a divorced spouse can potentially get higher social security benefits upon retirement.
Dividing Retirement Plans
If you earned a retirement plan during the marriage – it is subject to division by the court. All retirement plans, no matter what type or form, may be marital property. This includes 401K, IRA, Roth IRA, Annuities, and other types of deferred compensation plans. That means you or your spouse will have to split the plan. It does not matter if the other spouse never worked a day – the plan is still marital property. If part of the plan was earned before the marriage then part may be marital, and part non-marital.
How Much is Marital?
The entire retirement plan is not necessarily marital. Only the amount of value accrued, or built up during the marriage is marital. Amounts build up before the marriage are not marital. The years you simply lived together do not count. Only years actually married qualify.
The courts have come up with some established ways to determine the marital portion of a 401K or other type of retirement plan. Two phrases that describe the way the courts handle the determination are the ” time rule ” and the ” coverture fraction. “ These two are essentially the same. The exact formula can vary depending on the exact situation. But one example used by the court in a recent case follows:
Rule of Thumb for Dividing Pension Plans
The numerator should represent the number of months in which marital labor was devoted to earning the retirement account. The denominator would be the total number of months in which the retirement account was earned. The resulting fraction multiplied by the total present value of the retirement account is the marital portion – to be divided in the divorce.
Dividing Pension Plans Without a Tax Penalty
Most plans cannot be divided or liquidated without severe penalties. This problem is addressed with a special document called a QDRO – Qualified Domestic Relations Order. A QDRO is a special type of order, signed by the judge, that directs the retirement plan administrator to divide the plan payout at some time in the future. The word “future” in this case is the normal date in which payments would be made without penalty. Both spouses must wait until that future date for their payment. A QDRO is sent to the plan administrator and is binding upon them. Because arrangements to split the 401K or IRA are already in place, there is no reason for you to deal with your spouse in the future.Your attorney or an outside service can provide the QDRO document, ready to present to the Court.
Cash, Stocks, Bonds, CDs, & Debts
Overall, dividing money is the easiest issue for the courts to handle. Florida law requires a 50/50 split of money and debt – with certain exceptions. To compensate for other unequal value assets the court can award more money to one spouse or another. The goal is to equalize property between the spouses and an allocation of money and debt will be used to achieve that goal.
As always, special circumstances may apply. An inheritance to one spouse that is kept in the bank, never touched, and not used for marital support will probably remain the property of only one spouse.
The court will also look at problem situations, such as when one spouse improperly hides or wastes cash. Where large sums of money are involved the court may enter an order temporarily freezing a bank account to prevent waste. If money is missing due to the fault of one spouse the court may order an unequal distribution of property to compensate.
Automobiles – Who Gets Them?
Florida law requires a 50/50 split of assets most of the time. But that 50/50 cannot possible result in every asset cut in half. That would be impractical with cars.
In the case of cars, the natural preference is to award them to the person that normally drives that vehicle. The car loan always comes with the car. If the end result causes an imbalance in “value” to either side – the court can compensate by varying the percentage of division for other assets.
Dividing Othe Items in a Divorce
Florida law requires a 50/50 split of assets most of the time. But the court can allocate property to the spouse that has current possession or typically uses that item the most.
Personal property includes anything and everything that is not a house, building, or land. Parties to a divorce commonly dispute the value of household items.
Be sure to make a list of everything in a house before it disappears. Take pictures or videos. Be sure to secure anything you really want before you move out. Things tend to disappear in the typical case.
Common Property Division Questions
Everything is in one persons name. Does that mean it is not marital property?
Probably not. Titles, deeds, or possession does not necessarily determine whether property is marital or non-marital. The Court can change ownership details with one stroke of the pen. What really matters is fairness and common sense. But something to keep in mind is that Florida property distribution law contains many exceptions. For example, if one spouse put significant pre-marital money into an asset – that may give them a larger share in the end. It is important to look at each asset at the time of the marriage and then again – at the time of marital separation.
Everything is in the name of my spouses parent. What now?
These are difficult situations. But if you can present adequate proof, the Court can protect you and redistribute property that is really marital. People typically place assets in a family member’s name to protect it in the future. When this is the situation you must make a decision on how much money/effort you will spend on that item – versus the value of a possible recovery.
Can property division be changed after the divorce is granted?
Almost never. Final judgments are exactly that in property division – Final. There are some limited exceptions – such as when a spouse hides an asset and the court never addressed it. But for the most part asset distribution is final and non-modifiable.
Selling the house in a divorce?
If neither spouse can afford the marital home, or no one wants the home, it would be helpful to sell the house while the divorce is in progress. You can either agree on division of proceeds or the proceeds can be held in an escrow account pending a final court decision. During the last recession a common problem is when the marital home is under water financially. That makes it difficult or impossible to sell. Both spouses may want to file for a bankruptcy and give up the home. Or one spouse may want it but get extra assets to compensate for an upside down home.
401K and Divorce:
There are special rules governing 401Ks, IRAs and divorce – how the accounts are divided and who gets what percentage. The basic rule is that any equity created during the marriage is marital propery and will be divided. Any investment value created during the marriage is treated the same. Click on the link in the above map to learn more.
Bankruptcy before Divorce:
There is nothing that prevents either spouse from filing for bankruptcy before divorce. But keep in mind, the courts can assign debt back to you. Also, the bankruptcy code prevents the avoidance of obligations owed your spouse resulting from a divorce.
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