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Division of Marital Assets and Marital Liabilities

Division of Marital Assets and Marital Liabilities


For spouses going through the divorce process, the division of marital assets and liabilities can be both stressful and challenging. Florida law requires that marital assets and debts be divided according to the law of equitable distribution. Simply stated, this means that, when the spouses cannot agree on how to divide their property, it is the court’s responsibility to fairly distribute the assets and property accumulated during the marriage in a just and equitable manner, at the discretion of the court.  Although one might assume that this means that assets would be split in half, or 50/50, equitable distribution of marital property does not always result in equal shares for each spouse. Equitable means fair not equal.

Pursuant to Florida law, marital property includes any assets or property acquired by either spouse, jointly or individually, during the marriage. Marital property includes:

  • Businesses and professional practices
  • Real estate or an LLC holding title to real estate
  • The increase in value and appreciation of pre-marital assets resulting from either spouse’s efforts or expenditures during the marriage.
  • Gifts that a spouse gave to the other during the marriage and other unique assets
  • All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement accounts, pensions, and profit-sharing programs
  • 401(k) plans, investments, stocks and bonds
  • Inheritances or pre-marital assets of either party if he or she commingled or co-titled them during the marriage

Generally, property that a spouse owned or acquired before the marriage or later by inheritance is considered non-marital property and belongs to the spouse who owned it before the marriage or inherited it. Non-marital property is not subject to division by the court. However, in some cases, non-marital property can “transmutate” into marital property if the owner spouse jointly titles the property or commingles the non-marital asset with marital assets so that they lose their non-marital character. All property which is characterized as marital may be divided by the court.

Courts look at several factors in determining how marital property should be divided, including, but not limited to, the length of the marriage, a party’s wish to retain a particular asset, the monetary and non-monetary contributions to the marriage of each spouse and one spouse’s contribution to the other spouse’s career or education. Ultimately, the division of marital property is left to the court’s discretion, but if an unequal distribution is made, the court must provide a justification for the inequality. The property distribution is final and not modifiable.

In appropriate situations, the Court can award one of the spouses exclusive use of the marital home if that spouse needs it for dependent minor children of the marriage or has a support need. The Court must determine that it is in the best interest of the minor child or the party and that it is equitable and financially feasible.

Many spouses are worried about marital debt and fear that they will be legally responsible for an unfair amount after a divorce.  Marital debt is debt accumulated by the spouses during the course of the marriage and often includes home mortgages, credit card debt, medical bills, business loans, student loans, auto loans and tax obligations. Under Florida law, equitable distribution of marital debt is also required during a dissolution of marriage proceeding.    

The family law attorneys at Rice Law Firm have extensive experience in asset characterization and the division of marital property.  Contact us at (386) 257-1222 to learn about the legal options in your case and to see how we can put our knowledge and experience to work for you.

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