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Florida Property Division
Property Distribution Laws in Florida
In Florida, the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Circuit Court divides the marital estate within the Judgment of Divorce.
Florida is referred to as an "equitable distribution" state. It uses the dual classification model, and the appreciation of separate property is separate. Equitable does not mean equal, or even half, but rather what the court considers fair.
When the parties are unable to reach a settlement, the court divides the marital estate.
Factors in Equitable Distribution
The Florida court considers the following factors in making a property award:
Marital Property vs. Separate Property
Property is either marital or non-marital property, which is also called separate. Marital property means property purchased during the marriage or property purchased prior to the marriage but paid for by both parties during the marriage. Non-marital property includes, but is not limited to, property purchased prior to the marriage, in some cases, property inherited by a spouse and, depending on the court, property purchased after a separation or the filing of a petition for dissolution of marriage.
Separate property that is commingled with marital property becomes marital. Untainted separate property obtained before or during the marriage remains immune to distribution. The separate property includes, but is not limited to, gifts and inheritances.
Valuing and Dividing Property
Depending upon the asset and the agreement of the spouses, different methods of valuation are used to determine the value of a marital asset. When the spouses agree, courts generally accept what they say about the value of an asset. Absent agreement, experts may be retained by the parties or by the courts to determine the value of marital assets. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.
The Circuit Court classifies assets and liabilities as marital or separate. Then it assigns a dollar value to the marital property and debt. Finally it distributes the marital assets between the two parties in an equitable fashion.
The Marital Home
In Florida, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.
From there, couples choose one of three options to divide the equity:
Pensions and Retirement Accounts
In Florida, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.
In Florida, the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:
In Florida, if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.
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