Law Office of Steven R. Brenners

How Does Florida Law Define Property In A Divorce?

In Florida, the property in a divorce case is defined as real estate or personal property. We have to figure out if it is marital in nature or non-marital in nature. If it’s non-marital, then we try to get it awarded to one spouse. If it’s marital, then we try to divide it in a certain way. In that regard, there are two important dates to look at. One of them is the date that the divorce was filed in the court, and the other date is the date that the trial occurs. If you received or owned a property prior to the date of the filing, it will probably be defined as marital.

How Does Community Property Figure In a Divorce In Florida?

Community property doesn’t figure in a divorce in Florida because Florida is an equitable distribution state, meaning that we equitably distribute property. Fair is in the eye of the beholder, of course. We are not a community property state or a joint property state. Instead, we look at each asset individually in order to determine if it’s marital or non-marital, and we go forward from there.

If I Owned A Property Individually Prior To Marriage And Had It As Joint Ownership With My Wife After Marriage, How Will It Be Distributed In A Divorce?

If you take property which would normally be determined to be non-marital property, and you title it in joint name, then you have made a gift of that property. If you don’t clarify the percentage that you want to give to the other spouse, then 50% of those assets would go to the other spouse.

How Can Someone Protect Themselves In This Situation?

In the old days, we used to have special equity. This means that if you bought a house, let’s say, for $100,000, and you put in $50,000 entitled in joint name, then that $50,000 would be maintained as special equity and the rest would be shared. We no longer follow that law in Florida. It doesn’t really matter how much money you’ve put in or how much of it you owned before that. If you put it in joint name, then you’ve made a gift of it, and it’s probably going to be considered joint equal ownership.

How Are Pensions Or Retirement Accounts Distributed In A Divorce?

Pensions and retirement accounts are always interesting to deal with in a divorce case. In fact, lawyers actually hire actuaries to help figure that out. Basically, whatever you earned during the course of your marriage is considered joint marital property. The same would hold true for your pension or retirement accounts (or other asset of that nature). Simply put, if you had $100,000 in your 401(K) when you got married, then that $100,000 would be yours, but any increase or contribution to the plan that’s made during your marriage would be considered joint.

Of course, all of this is absent a prenuptial. You asked earlier how to you protect yourself; the prenuptial is a good way to protect yourself. A postnuptial or a written agreement with your spouse is another way to protect yourself. If you don’t have that, then any increase in the value of your pension plan, 401(K) or any other retirement vehicle would be considered a joint asset and the court should divide that.

How Would An Inheritance Be Distributed In A Divorce In Florida?

The standard way to look at inheritance is that anything earned or received by the sweat of one’s brow, as we say, would be considered marital. So, if you receive an inheritance or a gift during the marriage that may very well be non-marital in nature, then it’s your job to keep it non-marital. It’s your duty to keep it in a separate account and to maintain its separateness. If you do that, you may be able to protect it and keep it as a non-marital asset. However, if you put it in a joint account or even in a separate account that is mixed with money that you earn (marital money), then problems arise. In that situation, it would be up to the courts to determine what (if any) part of that is marital and how to divide that asset. In fact, you may have so changed the nature of that money to turn the entire matter from a non-marital account to a marital account, and that’s what you need to be careful about.

For more information on Division Of Property In A Divorce, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 755-0126 today.

Our Office

Office Location
9600 West Sample Road
Suite 406
Coral Springs, FL 33065
Phone: (954) 755-0126
Fax: 954-755-0112