Miami-Dade Property Division Attorneys

Equitably Distributing Marital Property in Your Divorce

Property division is often a contentious subject in divorce. When emotions or the need to “get even” drive the proceedings, it is easy to get drawn into a legal battle that may drain resources and drag out the process.

At Orshan, Spann & Fernandez-Mesa, we are committed to resolving conflicts over the distribution of your marital estate without sacrificing your rightful share. Our goal is to help our clients retain their property while protecting them from their spouse’s debts. Our Miami-Dade property division lawyers bring decades of combined experience to your case, offering the compassionate yet results-driven representation you need to achieve a positive outcome.

Discuss your case with us today by calling (305) 853-9161 and scheduling an initial consultation.

Marital Property vs. Non-Marital Property

Before equitably distributing the marital estate, the court must first determine whether assets or liabilities are marital or non-marital. Non-marital property is not subject to division in divorce. This includes property that a spouse brought to the marriage (such as a house, a business, or pension funds) or assets or debts acquired in the name of one spouse during the marriage but unconnected to the marriage (such as an inheritance or personal injury award). Typically, each party is awarded their separate, non-marital property upon the dissolution of the marriage.

Marital property includes all assets (and debts) that were acquired or incurred during marriage as a result of marital labor or funds and all property or liabilities that are not otherwise determined to be non-marital. Typically, marital property is equitably divided upon the dissolution of a marriage. The starting point for equitable distribution is an equal division of the marital estate, although the court considers numerous factors when deciding whether there should be an unequal division of the estate.

Some of those factors include:

• Each party’s contributions to the marriage, including childcare and homemaking
• Each party’s income and economic status
• How long the marriage lasted
• Either spouse’s contributions to the other’s career or education
• The value of keeping a certain asset – such as an interest in a business or professional practice – free from interference by the other spouse
• Child custody orders and how they impact who should retain the marital home for dependent children
• Whether either party intentionally depleted or wasted a marital asset before or after the divorce petition was filed

When Assets Are Both Marital & Non-Marital

Sometimes, assets contain both marital and non-marital components. The division of these assets becomes more complicated. If a non-marital asset increases in value during the marriage, there must be a determination as to whether that increase in value was “passive” (e.g. the result of market forces having nothing to do with either party’s efforts) or “active” (e.g. based on one of the spouse’s contributions of labor or funds to the growth of the asset). Marital assets include the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage or from the expenditure of marital funds.

For example, if one spouse owned a business at the time the parties were married and that business increased in value during the marriage as a result of one or both spouses working at the business, the increased value of the business will likely be deemed a marital asset subject to equitable distribution. Or, if one spouse provided a down payment for a house before the marriage but both parties contributed to the monthly mortgage and paid for improvements to the property during the marriage, the enhanced value of the property may be deemed a marital asset. Every asset requires a separate analysis to determine whether that asset will be deemed marital or non-marital by the court.