Married, With Property- What Happens to Property in a Florida Divorce?

Like most anything else in life, but particularly with legal questions, there is no short, clear-cut answer. And if there is a short answer, it's usually: "It depends." Not exactly the most helpful answer people are looking for when they're headed to divorce court.

Florida courts will start by looking at when the property was acquired. Generally, property acquired during the marriage with money earned during the marriage, is marital property. This means that the husband and wife each have a share in it. This is true even if it's in the name of one spouse only. An easy example would be the home bought with money earned during the marriage by the husband and wife, but put in the name of only one spouse because maybe the other's credit was not quite good enough for financing purposes.

Then there's the property each spouse had before the marriage, which is labeled premarital property. Even tho it may have been the property of one spouse prior to the marriage, the other spouse may have an interest in it--meaning he or she may share in it in the event of a divorce. This happens when a wife or husband owns property before the marriage but uses money earned during the marriage to improve, repair or sustain it in some way. The result is that the spouse whose name is not on it, and who had no legal interest in it, now acquires an interest under marital law in Florida.

What about inherited property--property one spouse received because a relative, usually parents, left it to them when they passed away? Or property that is received by one spouse as a gift from a third party (meaning not as a gift from the other spouse)? Normally that would be the property of the spouse who inherited it or received the gift---unless, after they inherited or got it, they put the other spouse's name on it; or, spent marital money on it as described above.

These rules apply to all kinds of property; for example, real property (including the home and income property), savings accounts, investment and retirement accounts, vehicles, etc., are all subject to this analysis.

Perhaps the best way to deal with what happens to property in a divorce is to think about it before the marriage. This is the point where you and your prospective spouse discuss a prenuptial agreement. Prenuptial agreements are contracts in and of themselves, with their own set of requirements. But here is a preview concerning prenuptials: (1) don't wait until you're at the church door to sign them; and (2) each of you should have your own attorney, chosen individually, and --preferably--paid for by whoever hires the attorney, not by one spouse paying both attorneys.

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