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Tampa Family Attorney | Blog | Property Division | How Are Assets and Liabilities Divided In A Florida Divorce?

How Are Assets and Liabilities Divided In A Florida Divorce?

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Asset division is the moment during divorce proceedings when even the most civil pair of soon-to-be ex-spouses can begin to argue, especially if the marriage has lasted for a long time. Florida law requires “equitable distribution” of marital assets, but this can sometimes be a difficult concept to define, and it can be very easy for divorcing spouses to become confused or think that they are not receiving a fair shake while assets are being distributed.

In order to ensure that you receive your fair share of the assets accumulated during your marriage, you need to have a clear understanding of your marital versus non-marital property, and what rights you have accumulated in each.  An experienced property division attorney can help put you in the best position possible.

General Rule

A court must set apart to each spouse that spouse’s non-marital assets and liabilities. Non-marital assets include assets acquired prior to the marriage. Generally, this is done with the assistance of an equitable distribution worksheet where the assets and liabilities, both marital and non-marital, are set forth, along with their respective values.  Sometimes assets can be non-marital but have a marital component to them, and this is where things can get a bit complicated.

Once marital property has been clarified, the court will look to division.  Equitable does not always mean equal.  The law specifies a list of factors that the court must take into consideration in determining how best to disburse marital property.  Those factors are as follows:

  • The duration of the marriage;
  • The economic circumstances of the marriage, and of each individual spouse;
  • The contributions of each spouse – either by working, or contributing as a homemaker (that is, staying home with children while the other spouse continued on their career path);
  • The “desirability of retaining any asset” free and clear – for example, a CPA wanting to retain the ownership of their private practice, which would mean that more of the other assets would go to their spouse;
  • The desirability of retaining the marital home, especially if there are any children of the marriage; and
  • Any alleged waste or dissipation of marital assets, among other factors.

Assets:

Pursuant to Florida statute Section 61.075(6), marital assets and liabilities “include:

  1. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them;
  2. The enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
  3. Interspousal gifts during the marriage;
  4. All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs;
  5. All real property held as tenants by the entireties; and
  6. All personal property titled jointly by the parties as tenants by the entireties.”

Generally speaking, the bench mark in time for the determination of marital assets and marital liabilities is the date of marriage.  Unless an asset or liability specifically can be established as non-marital, it will be presumed to be marital.  When the marital character of an asset is in question, the burden of proving that an asset is non-marital is on the party claiming it as such.  Assets acquired before marriage are not marital assets, and remain the sole property of the owner spouse in the absence of evidence that those assets have been commingled with marital assets, have been gifted to the owner’s spouse, or that marital funds have been utilized in the improvement and/or maintenance of those assets.

Liabilities

The liabilities acquired during the marriage generally are considered marital liabilities.  People often are very surprised to find out that this also includes student loans that were acquired during the marriage.  For example, if the wife takes out a student loan to go to back to nursing school during the marriage, the husband is liable for half of that loan even if his name is not on the loan.

Section 61.075, Florida Statutes, provides that the valuation date for marital assets is the date or dates that the judge determines is equitable under the circumstances.  Different assets may be valued as of different dates to provide the fairest result possible.  Depending on the asset and the circumstances, the appropriate valuation date could be determined to be the date of separation, the date of filing for the dissolution of marriage, or as late as the entry of the final judgment of dissolution.

Commingling

Non-marital property will lose its non-marital character if it is commingled with marital property.  For instance, monies inherited by one spouse will lose its non-marital status if it is deposited into a joint account with other marital funds.  This is a common mistake that many people make and regret later when he/she files for divorce, only to find out that the monies inherited from Grandpa have become a marital asset, subject to division.  Pursuant to Section 61.05, Florida Statutes, the increase in value of a non-marital asset also may become a marital asset to the extent that the enhanced value was caused by contribution of marital funds or by marital labor.  This type of appreciation is referred to as “active appreciation.”  Conversely, “passive appreciation” of a non-marital asset generally relates to the appreciation in the value as a result of market forces, timing, increase due to interest rates, etc.  Passive appreciation of a non-marital asset typically is not considered marital.

That said, the Florida legislature amended Section 61.075, Florida Statutes to add a formula for calculating the marital portion of passive appreciation in a non-marital property specifically where a note and mortgage on the non-marital property is paid down using marital funds. A portion of the passive appreciation will be deemed marital.  The marital portion is calculated by multiplying a coverture fraction by the passive appreciation in the property during the marriage.  The passive appreciation is determined by subtracting the value of the property on the date of the marriage, or date of encumbrance during the marriage, whichever is later, from the value as determined on the valuation date during the divorce, less any active appreciation during the marriage (for example, less the principal payments made on the mortgage using marital funds) and less any additional indebtedness on the property (for example, less any line of credit or second mortgage).  The coverture fraction: Numerator (total payments of principal from marital funds)/denominator (the value of the property when acquired, date of marriage, or date of encumbrance, whichever is later). For example, if the principal pay down during the marriage from marital funds was $30,000, and the property at the date of marriage was $300,000, then the marital percentage of passive appreciation is 10 percent. The total marital portion will be the principal pay down of the mortgage, plus the marital portion of the passive appreciation, and any active appreciation.  The value of the marital interest for this calculation cannot exceed the total net equity in the property at the valuation date. The court is required to apply this formula unless a party can establish that the application of the formula would be inequitable under the circumstances.

Contact A Tampa Property Division Attorney

If you have questions or are confused about the potential asset and debt distribution during your divorce, a dedicated Tampa property division lawyer can help. Contact The Law Office of Laura A. Olson, P.A. for more information.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html

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