How is Property Divided in Florida If My Spouse and I Can’t Agree?

Divorce is rarely simple, and when it comes to dividing property, things can get particularly complicated. One of the most common questions we hear at Vollrath Law is, “What happens to our stuff if we can’t agree on who gets what?” If you’re facing this situation in Oviedo or elsewhere in Florida, understanding how the courts typically handle property division can help you prepare for what’s ahead.

The Foundation: Florida’s Equitable Distribution Law

Florida operates under what’s called “equitable distribution,” which is outlined in Florida Statute 61.075. While some states follow community property laws (where everything is split 50/50), Florida takes a different approach that aims to be fair—but not necessarily equal.

Here’s what you need to know: When spouses can’t agree on property division, the court steps in and follows this process:

1. Identifies and categorizes all assets and debts as either “marital” or “nonmarital”
2. Values all marital assets and liabilities
3. Distributes everything equitably between spouses

Let’s break down what this looks like in a typical divorce settlement in Florida.

What is Considered Marital Property in Florida?

Before anything can be divided, the court must determine what’s on the table. In a typical Florida divorce settlement, marital property generally includes:

• Assets acquired during the marriage, regardless of whose name is on the title
• Income earned by either spouse during the marriage
• Retirement benefits and pensions accumulated during marriage
• Gifts between spouses during the marriage
• The increased value of non-marital property if that increase resulted from either spouse’s efforts or from the use of marital funds
• Real estate purchased together during the marriage

Something many people don’t realize is that debts acquired during the marriage are also considered marital property and will be divided just like assets.

What’s Not Included in Property Division?

Not everything you own is subject to division. Non-marital property typically stays with its original owner and includes:

• Assets owned before the marriage
• Inheritances or gifts received by one spouse from someone other than their spouse
• Income from non-marital assets (unless it was treated as a marital asset)
• Assets excluded by a valid prenuptial or postnuptial agreement
• Certain personal injury compensation (the portion related to pain and suffering)

Here’s where it gets tricky: Non-marital assets can become marital assets if they’re commingled with marital property. For example, if you inherited money (non-marital) but deposited it in a joint account (commingling), it might now be considered marital property.

The Myth of the 50/50 Split

Many people assume that a typical divorce settlement in Florida means splitting everything right down the middle. In reality, Florida courts aim for equitable (fair) distribution, not necessarily equal distribution.

When deciding what’s “fair,” judges consider several factors outlined in Florida Statute 61.075(1), including:

• Each spouse’s economic circumstances
• The length of the marriage
• Each spouse’s contribution to the marriage, including childcare and homemaking
• Career sacrifices made by either spouse
• Whether one spouse contributed to the other’s education or career
• The desirability of keeping specific assets intact, like a business
• Contributions to acquiring assets or incurring debts
• Whether the family home should be kept for child-rearing
• Intentional waste or destruction of marital assets within two years of filing

Here’s a real-world example: After a 20-year marriage where one spouse stayed home to raise children while the other built a successful career, a 50/50 split might not be equitable. The court might award more assets to the spouse with lower earning potential to create a fair outcome.

When Spouses Can’t Agree: The Court Process

If you and your spouse can’t reach an agreement, here’s what typically happens:

1. Financial Disclosures: Both parties must complete a financial affidavit disclosing all assets and liabilities.
2. Valuation: For complex assets like businesses, real estate, or rare collectibles, you might need professional appraisers.
3. Temporary Orders: The court may issue temporary orders for property use while the divorce is pending. For instance, deciding who stays in the family home.
4. Mediation: Most Florida courts require couples to attempt mediation before a trial.
5. Trial: If mediation fails, the judge will make decisions based on testimony and evidence.
6. Final Judgment: The court issues a detailed order specifying how everything is divided.

The judge’s decision becomes a court order, and both parties must comply—even if they disagree with the outcome.

Special Considerations in Property Division

The Marital Home

The family home often presents the biggest challenge. If there are dependent children, courts might award temporary exclusive use of the home to the parent with majority time-sharing, even if the home is eventually sold.

Retirement Accounts

Dividing retirement accounts like 401(k)s and pensions requires special handling. Typically, only the portion accrued during the marriage is considered marital property. These divisions usually require a special court order called a Qualified Domestic Relations Order (QDRO).

Business Interests

If one or both spouses own a business, valuing and dividing it can be complex. Options might include:

• One spouse buying out the other’s interest
• Selling the business and dividing proceeds
• Continued co-ownership (though this is rare)

Hidden Assets

Unfortunately, some spouses try to hide assets during divorce. Florida courts take this very seriously, and hiding assets can result in penalties. If you suspect your spouse is concealing assets, discuss this with your attorney immediately.

Protecting Your Interests When You Can’t Agree

If you’re heading toward a contested property division, here are some steps to protect yourself:

1. Gather documentation of all assets and debts, including account statements, property deeds, tax returns, and loan documents.
2. Consider the timing of your divorce filing, as the date of filing typically establishes the cut-off for determining marital assets.
3. Prioritize what matters most to you. Being clear about your priorities helps your attorney negotiate effectively.
4. Be realistic about costs. Fighting over every item can significantly increase legal fees, sometimes exceeding the value of the disputed items.
5. Consult with an experienced divorce attorney who understands Florida’s equitable distribution laws and can advocate for your fair share.

When Compromise Is the Best Solution

While it’s important to know how courts typically handle property division, reaching an agreement outside of court almost always results in better outcomes for both parties. Even in highly contested divorces, settlement agreements offer several advantages:

• You maintain more control over the outcome
• The process is usually faster and less expensive
• You avoid the uncertainty of a judge’s ruling
• The emotional toll is typically lower
• You can create creative solutions that courts might not consider

At Vollrath Law in Oviedo, we’ve helped many Central Florida couples navigate the complex process of property division during divorce. While we’re fully prepared to advocate for you in court if necessary, we also excel at helping couples find middle ground when possible.

If you’re facing a divorce where property division is contested, contact us for guidance specific to your situation. Our experienced family law attorneys understand the nuances of Florida’s equitable distribution laws and will work to protect your financial future during this challenging transition.

This blog post is for informational purposes only and should not be construed as legal advice for any individual case or situation. The property division process can vary based on the specific circumstances of your case.