The laws of Florida governing divorce (referred to in Florida as dissolution of marriage) and family matters are contained in Florida Statutes Title VI, Chapter 61 and can be found by clicking on this link.
Initial considerations for Divorce
To file for divorce in Florida, at least one of the spouses must reside in the state for six months prior to filing. The dissolution of marriage must be filed in the Circuit Court of the County in which one of the parties resides. The Circuit Court has jurisdiction over matters of divorce including child support, custody, and property division.
Grounds for Divorce
Grounds for divorce are the legal reasons or basis for divorce. Florida recognizes two reasons for divorce: (1) that the marriage is "irretrievably broken," and (2) one of the parties is mentally incapacitated. The first reason is much more commonly used.
Division of Property
How is property divided in a divorce?
Everything a husband and wife own (whether individually or commonly) is divided into one of two categories under Florida law: (1) marital assets and liabilities, and (2) non-marital assets and liabilities. An asset is defined as money or property that is owned. A liability simply refers to money owed (a debt).
If property is determined to be a "nonmarital asset" it is kept by whichever spouse it belongs to. If a debt is determined to be a "nonmarital liability" it is up to the spouse that incurred the debt to pay it off.
If property is determined to be a "marital asset" it is said to be "distributed equitably." Notice that Florida law does not say that marital assets should be distributed "equally." Instead, the term "equitable" is used. This term essentially means that assets are distributed according to what is deemed to be fair, just, or right. While Florida courts do begin with the premise that the distribution of marital property should be equal, it does not necessarily mean that the actual outcome will be an equal or 50/50 distribution.
In order to determine what is "equitable," there are ten factors that Florida courts consider. These include the economic circumstances of the parties, the contribution to the marriage by each spouse (including contributions to the care and education of the children and services as homemaker), and any factors necessary to do equity and justice to the two parties.
What constitutes a nonmarital asset or liability?
A non-marital asset or liability is one that is not a marital asset or liability (see the definitions for those terms below), as well as assets acquired by either spouse before the marriage.
What constitutes a marital asset or liability?
The definition of a "marital asset" and "marital liability" is complicated under Florida law. It includes several categories of assets and liabilities (debts). Some are simple to understand, while others are more complicated. For this reason, it is best to consult an attorney to determine if specific property might constitute a marital asset or liability.
In brief, Florida law defines a "marital asset" or "marital liability" to be any of the following:
- • An asset or liability incurred during the marriage (either by one spouse or by both spouses together);
- • An increase in value of a "nonmarital asset" either from the efforts of one of the spouses during the marriage or from such an increase in value of "nonmarital assets" due to the Contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
- • Gifts from one spouse to the other during the marriage (called "interspousal gifts");
- • All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs; and
- • All real property (real estate) that is held by the spouses in a form of ownership called "tenancy by the entirety," whether or not that real property was acquired prior to the marriage or during the marriage itself.
