Quick Summary
- Division of marital property is one of the basic parts of any divorce, along with alimony and child support. If you don’t have minor children and neither party desires alimony, be sure to check out my post on how to divorce when there is only marital property.
- Florida is an equitable division state-which means the court attempts to divide things fairly, but not necessarily 50/50
- You should always have your property settlement in writing and approved by the court.
- It is very difficult to change a property settlement agreement once it is approved by the court.
Step 1: Determine what is marital property
Marital Property vs. Non-Marital Property
First, not every possession you have would be considered marital property and would not be considered for division of property in divorce. This is important because a court only has the power to divide marital property. For example, if you owned a house before you married and never put your spouse on the deed, then this would not be marital property. Gifts and inheritance received during the marriage are not considered martial property unless they are combined with marital assets. For example, if a spouse receives money from an inheritance and deposits it in a joint account, it becomes marital property.
Step 2: Adding it up-assets and liabilities
Once you have an idea of what is marital and non-marital property you need to add it up. You also need to add up all the liabilities and or debts that were created during the marriage.
Assets include:
- Cash in hand or in banks.
- Stocks and bonds
- Promissory notes-money owed to you.
- Real estate
- Automobiles, boats, etc…
- Business interests.
- Jewelry
- Household items.
- Retirement plans
Liabilities include:
- Mortgages and loans
- Credit Cards
- Car loans
- Judgments
- other money owed.
Step 3: Who gets whats in the division of property.
The next step is where the things actually get divided. Recall that Florida is an “equitable division” state which means that division of property is not exactly 50/50. The courts wants to have a fair division of assets and liabilities. This will vary from case to case. The classic example is when one spouse forgoes working to raise the family while the other spouse’s career flourishes. The stay at home spouse might be entitled to a bigger share of the marital property because they supported their spouse’s career. Another common example is to award the marital home to the spouse who has primary custody of the children.
Liabilities are also to be divided equitably under Florida law. For example, a credit card in your name only and used only by you will probably be your responsibility. Mortgage debt? One solution is to sell the house to pay off the mortgage. Another possibility is that one spouse can refinance the house in his or her own name.
What about bankruptcy? According to upsolve.com, divorced people are over-represented in the bankruptcy courts. This can be an issue with a jointly held account, such as an auto loan. Once one spouse has filed for bankruptcy, the other spouse can be sued for the whole amount owed.
Step 4: Getting Court Approval for your property division agreement.
Next you have to obtain court approval for your agreement. The courts usually will accept most property settlement agreements, but the following will raise red flags:
- Big difference between what each spouse receives.
- Any evidence of pressure or duress to sign the agreement.
- One spouse is vulnerable to manipulation due to medical conditions.
- Other evidence that the agreement wasn’t entered into voluntarily.
Step 5: Modification of your agreement.
Sometimes circumstances will change or you otherwise have a reason to modify the division of property in divorce. In order to change your agreement you need to mutually agree to the change with your former spouse or petition the court. Courts are very resistant to change your property division after divorce. Usually, the only grounds are is if you can prove that you former spouse was hiding assets or otherwise failed to disclose assets during the process described above. Another reason a court could change a division order is if the court incorrectly calculated the value of a property.
Conclusion
Dividing your property is an important part of your divorce. The courts will agree to most property agreements unless there is evidence of duress or other bad faith dealing. Finally, ou need to do it correctly the first time because the courts don’t like to change agreements after the divorce.
If you have questions about division of property of other parts of divorce call attorney Joel Lipinski for a free consultation at 727-643-8964 or complete the form below.
