What Happens to Shared Property During a Divorce?

Going through a divorce brings a wave of emotional and logistical challenges. One of the most significant hurdles is figuring out what happens to the property you and your spouse acquired together. The home you lived in, the car you shared, and even the retirement accounts you both contributed to are all subject to division. This process can feel overwhelming, but understanding how it works is the first step toward a fair resolution.

This guide will walk you through the process of dividing shared property in a Florida divorce. We’ll explain key legal concepts like marital versus non-marital property, how courts determine what’s equitable, and what steps you can take to protect your interests. Armed with this knowledge, you can approach your divorce with more confidence and clarity.

Understanding Marital vs. Non-Marital Property

Before any property can be divided, it must be categorized as either "marital" or "non-marital." This distinction is the foundation of property division in Florida.

Marital Property

Marital property includes almost everything you and your spouse acquired during the marriage. It doesn't matter whose name is on the title or who paid for it. If it was obtained between the date of marriage and the date of filing for divorce, it’s generally considered marital property.

Common examples include:

The family home and other real estate
Cars, boats, and other vehicles
Bank accounts and investments
Retirement accounts, pensions, and 401(k)s
Furniture, art, and other personal belongings
Businesses started during the marriage

An important concept here is the "enhancement" of non-marital assets. If a non-marital asset—say, a house you owned before the marriage—increases in value due to the use of marital funds or the efforts of either spouse, that increase in value is considered marital property.

Non-Marital Property

Non-marital property, also known as separate property, belongs to one spouse individually and is not subject to division in a divorce. This typically includes:

Assets and debts owned by either spouse before the marriage.
Inheritances received by one spouse, even if received during the marriage.
Gifts received by one spouse from a third party (like a gift from a parent).
Assets and debts specifically excluded by a valid prenuptial or postnuptial agreement.

Keeping non-marital property separate is key. If you "commingle" it with marital assets—for example, by depositing an inheritance into a joint bank account used for household expenses—it may lose its non-marital status and become subject to division.

The Principle of Equitable Distribution

Florida is an "equitable distribution" state. This doesn't mean that marital property is always split 50/50. Instead, the court aims for a division that is fair and just under the specific circumstances of the marriage.

While the starting point is often an equal split, a judge can order an unequal distribution based on several factors. According to Florida law, the court must consider:

The contribution of each spouse to the marriage, including contributions to the care and education of children and services as a homemaker.
The economic circumstances of both parties.
The duration of the marriage. Longer marriages may be treated differently than shorter ones.
Any interruption of personal careers or educational opportunities of either spouse.
The contribution of one spouse to the personal career or educational opportunity of the other.
The desirability of retaining any asset, including an interest in a business or professional practice, intact and free from any claim by the other party.
The desirability of retaining the marital home as a residence for any dependent child.
Any intentional waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior.

For example, if one spouse sacrificed their career to raise children while the other built a successful business, the court might award the stay-at-home parent a larger share of the assets to account for their non-financial contributions and potentially diminished earning capacity.

Common Scenarios in Property Division

Let’s look at how equitable distribution applies to some of the most common and valuable assets.

The Marital Home

The family home is often the most significant asset. There are several ways it can be handled:

Sell the home: The house is sold, and the proceeds are divided between the spouses.
One spouse buys out the other: One spouse keeps the house and pays the other for their share of the equity. This often requires refinancing the mortgage.
Deferred sale: One spouse, usually the one with primary custody of the children, may be allowed to live in the home for a set period. After that time, the house is sold.

Retirement Accounts

Retirement accounts like 401(k)s, IRAs, and pensions are considered marital assets if the funds were contributed during the marriage. Dividing these accounts requires a special court order called a Qualified Domestic Relations Order (QDRO). A QDRO allows the funds to be transferred from one spouse to the other without incurring early withdrawal penalties or taxes.

Business Interests

If a business was started or grew in value during the marriage, it is subject to equitable distribution. Valuing a business is a complex process that often requires hiring a forensic accountant or business valuation expert. The court will then decide how to divide the interest, which could involve one spouse buying out the other's share or arranging for ongoing payments.

Navigating Your Next Steps

Dividing property in a divorce is a complex legal process with long-term financial consequences. While the principles of equitable distribution provide a framework, applying them to your unique situation requires careful legal analysis. If you need help with a family law practice in Winter Park, FL, it is crucial to seek guidance from a knowledgeable attorney who can protect your rights and advocate for a fair outcome.

An experienced lawyer can help you identify and value all marital assets, distinguish them from non-marital property, and negotiate a settlement that secures your financial future. If an agreement can't be reached, they will represent your interests in court.

Contact Frank Family Law today for a legal consultation to discuss your case and learn how we can assist you.