Family Law & Divorce Law Firm
Division of Marital Property During a Divorce
If you are going through a divorce, one of the questions foremost on your mind is likely the division of marital property. How does property ownership work in a marriage? And how is that property divided once that marriage dissolves? At Liebenhaut Hesser, we can answer your questions and advise you of your options. Call us for a consultation today.
What Is Marital Property?
Marital property is mostly all of the property acquired during the marriage unless a spouse proves otherwise, or that the property was acquired prior to marriage. The court considers items like stocks and bonds, pensions, and bank accounts to be marital property even if the property only names one spouse. If a court determines that the property is marital property, then it must divide the property equitably. This is known as equitable division.
Additionally, while the court may consider property that the spouses bring into the marriage to be marital, the court of jurisdiction for the divorce may award it back to the spouse who had the property prior to marriage. The courts do their best to be fair to both spouses. Each spouse must make a full disclosure of all assets and debts to both the court and to their spouse.
What Is Not Classified as Marital Property?
The following items are not classified as marital property. Property:
- Acquired prior to marriage still in only one spouse’s name;
- Acquired by gift, bequest, or descent by only one spouse;
- Excluded in valid contractual agreement between the spouses;
- Acquired by one spouse either in exchange for property acquired by gift, bequest, or descent or in exchange for property acquired prior to marriage;
- Acquired by one spouse following a Judgment of Legal Separation; and
- Received through a judgment where the court awarded the property from one spouse to the other spouse.
What Is Community Property?
Community property is anything that is not classified as separate property and that is acquired by the married couple. This is a presumption that any spouse must overcome if he or she wants to prove that property that looks like it should be classified as community property should actually be classified as separate property. The spouse who attempts to prove this bears the burden in court of proving by clear and convincing evidence that the property should not be classified as community property. While many states follow community property laws, Florida does not.
What Is Considered as Separate Property?
The following items are classified as separate property. Property:
- Acquired by gift, will, or inheritance;
- Acquired due to a personal injury recovery except any parts of the recovery that the court awarded to compensate for community expenses (or the expenses of the married couple);
- Separated by an agreement between the spouses, such as a prenuptial agreement; and
- Acquired by a spouse prior to marriage or following divorce.
How Is Property Classified as Community Property?
Property is classified as either community or separate based on the “inception of title” rule in law. Generally, this means that it is classified as separate property if a spouse acquired it prior to marriage or as community property if a spouse acquired it after marriage.
What Is Quasi-Community Property?
This applies to couples who married outside of a community property state. If a couple acquired property while married and living in another, non-community property state and the property would have been classified as community property had the couple lived in a community property state, then the property is classified as community property for the purposes of property distribution in a divorce.
Equitable Distribution and Community Property Distribution in Divorce
Property distribution in states governed by community property laws is usually a 50/50 split of the community property between the spouses. Equitable distribution, however, occurs more frequently than community property distribution’s 50/50 split rule. Equitable distribution factors in the financial circumstances of each spouse to determine how the court will divide the marital property.
While equitable distribution allows the court more flexibility to distribute community property between the spouses, it also makes it more difficult to predict how the court will distribute community property due to the numerous factors the court may consider. Factors considered in equitable distribution include:
- How long the marriage lasted;
- The age and emotional and physical health of each spouse;
- The property or the income each spouse brought to the marriage;
- The spouses’ standard of living during the marriage;
- Any written agreement executed before or during the marriage by the spouses regarding property distribution;
- Each spouse’s economic situation when the property distribution goes into effect;
- Each spouse’s separate earning potential and income;
- A spouse’s contribution to the training, earning power, or education of the other spouse;
- Each spouse’s contribution to the acquisition of any marital property, including any contributions of a spouse as a homemaker;
- Each spouse’s tax consequences;
- The marital property’s present value;
- The custodial parent’s need to stay in the marital home and to keep possession of household items;
- The liabilities and debts from the marriage along with each spouse’s to pay those debts; and
- Any additional factors believed by the court to be relevant.
Contact Liebenhaut Hesser Today to Speak to a Family Law Attorney
To learn more about division of marital property in divorce, contact Liebenhaut Hesser. We can help you make sure you protect your rights during the divorce process, as well as inform you of your legal options. We can also help you with your child custody, child support, and spousal support issues. Call us today.