Is Florida a Community Property State?

Jul 27, 2022 | Estate Planning Legal Blogs | Elder Law P.A

When dealing with marital property in Florida, a common question is, ‘is Florida a community property state?’ The answer is that, like many other states, Florida is not a community property state. Community property states follow laws that suggest that any assets acquired by either spouse during the marriage are marital property. As a result, both spouses own them. This can even apply to income.

The Sunshine State, though, follows very different laws – those of equitable distribution. Upon divorce, marital assets are split according to the judge’s findings.

Understanding Equitable Distribution

A judge’s findings are based on a number of things, and it doesn’t typically result in a 50/50 split. Instead, a judge considers a number of factors including

  • How much each spouse makes now and might make in the future
  • How long the marriage has lasted
  • The number of kids involved with the marriage and where the kids will live
  • The contribution of each person toward their home
  • Each spouse’s debt and assets
  • The physical and mental health of each spouse

The judge may also consider whether either spouse intentionally destroyed assets after the petition was filed.

What’s Considered “Property”?

If you were wondering ‘is Florida a community property state?’, then you might be wondering, ‘what is considered property?’ For the most part, unless there is a valid written document by the spouses that states otherwise, all assets and debts that either spouse acquires during the marriage are considered marital property in Florida.

The Florida spousal rights law permits spouses to share all marital debts and assets, even if the debt is tilted under one spouse’s name. For example, if you open a joint credit card with your spouse, but your spouse did all the spending- according to the law, you are still responsible for this debt even though you did not do any spending unless you can prove to the court that your spouse hid all the debt or the account from you.

Because Florida is not a community property state, any property held alone by either spouse is deemed to be separate property; and as such in Florida, isn’t available for collection by a creditor of the non-owner spouse.

Separate Property

Separate property is just a term for those things that are owned by one spouse before marriage. During the divorce settlement, the spouse gets to keep those assets. It can include:

  • Debts and Assets
  • Income Obtained from Separate Rental Property
  • Items Purchased with the Separate Property

Further, if the separate property sees a serious value increase over the course of the marriage, though, and the profits were added to the marital fund, it becomes marital property.

Do Investments Count?

All investments including retirement accounts, IRAs, and profit-sharing accounts, are considered marital property, which makes them subject to equitable distribution. However, if you or your spouse accrued some of the benefits prior to marriage, you may need to consult a lawyer to determine how much of these benefits are considered marital property.

When Does Separate Property Become Marital Property?

If you own separate property, it could become marital property if you changed the title of that property into a joint deed. This is called the transmutation of property.

Commingling can also occur. For example, one may use marital funds to pay for the mortgage of the separate property or use marital funds to upgrade the separate property. When this occurs, the courts usually treat everything involved as marital property. If the spouse continues to claim that the property is separate, he or she will have to provide detailed financial records for the courts to assess. These scenarios can get very complex and usually require the assistance of an estate attorney.

Dividing Marital Property

In many cases, a judge must divide marital property, but there are other ways. If both of you have a working relationship, you can divide the property on your own provided it is well documented. You can also work with a mediator. Florida courts do accept such agreements as long as they are documented and each spouse has had the chance to consult with an estate attorney. If the couple is not able to reach an agreement, then the decision is usually left to a judge.

Consult an Attorney

So, is Florida a community property state? No. If you are in the midst of a divorce or separation and want your fair share of the property, it is best to consult an estate lawyer. It’s the single best way to ensure your assets are protected. Contact us today!

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