Turning Complex Issues Into Simple Solutions Reach Out Now
Model house and family figure splitted on two half

How Are Assets Divided in Divorce?

The Spence Law Firm Jan. 10, 2025

Divorce can be a challenging process, particularly when it comes to dividing assets. In Florida, like in many states, assets acquired during the marriage are subject to division according to state laws. These laws aim to fairly distribute marital property, considering both spouses' contributions to the marriage. 

Knowing how assets are divided in a divorce is crucial for anyone going through this process, especially in Orlando, Florida, where the rules and procedures may differ slightly from those in other states. The Spence Law Firm is here to assist you with this process. Read on to learn more about what happens to your assets in the event of a divorce.

Florida's Approach to Asset Division

Florida follows the principle of equitable distribution when it comes to dividing marital assets. Equitable distribution doesn’t mean a 50/50 split of assets, but rather a division based on what’s fair and just under the circumstances of the marriage. 

The law presumes that all property acquired during the marriage, except for certain exceptions, is marital property and thus subject to division. For example, assets like real estate, bank accounts, retirement accounts, vehicles, and even business interests are all considered part of the marital estate.

The courts aim to divide these assets in a manner that reflects the contributions made by each spouse, both financially and non-financially, as well as other relevant factors, including determining what is a marital asset, and what isn’t.

Marital vs. Non-Marital Assets

One of the first steps in asset division is distinguishing between marital and non-marital assets. Non-marital assets are generally not divided in divorce proceedings. These assets include property owned by one spouse prior to the marriage, gifts, and inheritances received by one spouse, or assets acquired after the filing for divorce.

Non-marital property can become marital property if it’s commingled, such as when a spouse deposits a gift or inheritance into a joint bank account. In such cases, determining whether the asset remains non-marital can be tricky, and the court may need to review specific evidence. 

Florida family law courts typically favor transparency and full disclosure during this process, so both parties are expected to provide an accurate accounting of all assets.

What Part Do the Courts Play in Asset Division?

In a Florida divorce, if the spouses cannot reach a mutual agreement on how to divide their assets, the court will step in. The judge will make a determination based on several factors laid out by Florida family law. The aim is to divide assets in a way that reflects fairness rather than equality.

Factors the Court Considers

Florida family law sets forth a list of factors that the court must consider when deciding on asset distribution. These include:

  • The duration of the marriage: Generally, longer marriages may result in a more equal division of assets, particularly if one spouse is financially dependent on the other.

  • The economic circumstances of each spouse: If one spouse is in a weaker financial position, the court may allocate a larger portion of the assets to that spouse to provide for their needs.

  • The contributions of each spouse to the marriage: This doesn’t just include financial contributions, but also non-financial contributions such as caring for the home or children.

  • The desirability of retaining any asset: If one spouse wishes to retain the family home or a specific asset, the court may factor in whether it’s reasonable for that spouse to keep the asset.

  • The contribution of one spouse to the career or education of the other: If one spouse supported the other in advancing their career or furthering their education, the court may consider this a contribution worthy of compensation.

  • The interruption of personal careers or educational opportunities: This applies to situations where one spouse puts their own career on hold to support the family, and it may result in that spouse receiving a larger portion of the assets.

  • Any other factor the court considers relevant: Florida family law allows the court to take into account additional factors that may be specific to the case.

It’s important to note that Florida law doesn’t automatically assume that a 50/50 split is fair, even in cases where both spouses contributed financially. The goal is to reach a fair outcome based on the specifics of the marriage. This is why it’s crucial for both parties to be transparent about their needs, possessions, and so on.

The Importance of Disclosure

During divorce proceedings, full financial disclosure is crucial. Both spouses are required to provide complete and accurate financial documentation, which includes lists of income, expenses, assets, and debts. The courts expect transparency to make sure that all marital property is identified and properly divided.

If one spouse fails to disclose assets or attempts to hide property, the court can impose penalties, including awarding a larger share of the marital assets to the other spouse. Fraudulent activity can seriously impact the outcome of the asset division and may even lead to legal consequences.

Different Types of Assets in Divorce

Florida divorce courts divide a wide variety of assets, from tangible properties like real estate to intangible assets like retirement accounts and stock options. Understanding how different types of assets are treated can help set expectations during the divorce process.

  • Real estate: If you and your spouse own a home, the court will need to determine whether the property should be sold and the proceeds divided, or whether one spouse will buy out the other’s share. The court will also consider factors such as who lived in the home and who maintained it.

  • Retirement accounts: Retirement accounts are often some of the largest assets in a marriage. Florida courts treat retirement accounts, such as pensions and 401(k) plans, as marital property, but they may require the use of a Qualified Domestic Relations Order (QDRO) to divide these assets. This legal document allows for the direct division of retirement accounts without triggering tax penalties.

  • Businesses: If one spouse owns a business, determining the value of that business can be complicated. Florida courts may require a business valuation to determine the fair market value of the business, and the non-owning spouse may be entitled to a portion of the business value.

  • Personal property: Personal property, such as jewelry, art, and other items of value, is also subject to division. The court will determine whether these items are considered marital property and, if so, how to fairly divide them.

  • Debts: Alongside assets, debts must also be divided. In some cases, debts are considered marital liabilities, which means they’re shared by both spouses. In other cases, debts incurred before the marriage or by one spouse without the other’s knowledge may be treated as separate debts.

While Florida family law gives judges the authority to divide assets, many couples prefer to reach a settlement on their own.

Settlement vs. Court Decisions

Settlements allow both spouses to negotiate the division of assets without the need for a judge to intervene. This can often lead to a more amicable divorce, as both parties have control over the outcome.

However, settlement negotiations can still be challenging, especially if one spouse is unwilling to compromise or if there are disagreements about the value of assets. In such cases, divorce mediation may be required. Mediation allows the spouses to work with a neutral third party who facilitates discussions and helps them reach an agreement on the division of assets.

If a settlement can’t be reached, the court will make the final decision. This decision is based on the factors listed earlier and is designed to be fair, though it may not always align with what either spouse wanted.

Enlist Our Legal Counsel Today

Our firm is located in Orlando, Florida, and serves clients throughout Orange County, Florida, and the surrounding areas including Oak Ridge, Pine Hills, Lockhart, Maitland, Azalea Park, Osceola County, Lake County, and Seminole County. Reach out to The Spence Law Firm today to schedule a consultation.