When you’re going through a divorce, you have to deal with all kinds of issues. If there are children, you need to worry about child support and time sharing. You might have to plan on giving or receiving alimony.
Then, there’s the division of assets.
None of these issues are easy to confront, and the longer you’ve been married, the more complicated the process can be. Because the life you and your spouse have built only becomes more interconnected over time.
When it comes to divorce and splitting up your property, it’s important to know that our state has an equitable distribution of marital assets. According to the Florida statutes, “the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal.”
In other words, if you or your spouse have assets outside the marriage, those will not be divided and distributed. All marital assets, on the other hand, will be divided equally.
Except that’s not quite true. Sometimes, there’s a specific reason or reasons that the assets should not be divided equally.
So let’s first discuss the difference between marital and nonmarital assets, and then delve into why your marital assets might not be split right down the middle.
Marital vs. Nonmarital Assets
When you get married, you’re not simply legally joining your life with your spouse – you’re joining everything. So when it comes time to get a divorce, it can be difficult to untangle what’s yours and what’s your spouse’s.
As mentioned above, the nonmarital assets will stay with the spouse they belong too. Nonmarital assets – also known as separate property – are assets that belong to the individual spouse instead of the marriage.
These types of assets might include property one spouse owned before marriage, an inheritance, or a gift given to you – not including gifts from your spouse. If you and your spouse have a premarital agreement, you might have already defined what each spouse’s nonmarital assets are.
Marital assets include the property and debts acquired by each spouse during the course of a marriage. Marital assets can include property, money, and benefits such as retirement accounts. Regardless of whether something is in your spouse’s name, if it was acquired during the marriage, then it’s marital property.
For example, if your spouse opens a credit card in his or her name and is the only one using the card, you are still jointly responsible for the charges because you are married.
Nonmarital assets can also become commingled with marital assets. Let’s say you had a savings account prior to getting married. After you get married, you deposit some of your savings into a joint account that you and your spouse share. Now, that money is commingled.
If you want to reclaim that amount of money as your own separate property, you will have to produce detailed financial records proving the money was originally yours.
When Are Marital Assets Not Divided Equally?
If you’re going through a divorce, you and your spouse start off getting an equal share of the marital assets. However, according to Chapter 61 of the Florida statutes, there are several factors that can lead to marital assets not being divided equally. Those factors include:
- Each spouse’s contribution to the marriage, which also includes contributions to any children and the home;
- The finances of each spouse;
- How long you were married;
- Whether either spouse interrupted their educational opportunities or personal career;
- The contribution of one spouse to the other’s educational opportunity or personal career;
- Whether one spouse wants a particular asset without interference from the other spouse;
- The contribution of each spouse to both marital and nonmarital assets;
- The desirability of retaining the marital home for dependent children;
- The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition; and
- Any other relevant factors.
Debts are also divided equally, unless this division is unfair. In the credit card example mentioned above, if a spouse has a credit card in his or her name and singlehandedly racks up a large amount of debt, the court might give the total amount of debt to that spouse.
Dividing marital assets can be a difficult and complex process if you and your spouse disagree on who gets what. That’s why you should reach out to an experienced Florida divorce attorney as early as possible. A skilled attorney will not only help you sort through your assets but also make sure you get what’s rightfully yours.