How to Divide Up Property in a Divorce

These kinds of statements get thrown around all the time when spouses start working out who gets what during a divorce. Usually, though, they’re based on a very flawed understanding of how property division works during a divorce — so don’t let your spouse tell you what you are or aren’t entitled to.

In this article, we’ll help you understand how property division works during a divorce, including how family law courts decide who owns what and how that process is different from the way banks and creditors view ownership. 

What is marital property and what is not?

Marital property is any property you acquired during the marriage that doesn’t meet the definition of separate property.If you buy a house or car together after you get married, that’s marital property — even if only one spouse puts their name on the deed or title. The only way to avoid this is by working with a lawyer to create a prenuptial or postnuptial agreement, which can override your state’s property division laws. 

Separate property is any property that you acquired before the marriage, received through gift or inheritance solely to you during the marriage, or bought with separate (non-commingled) funds during the marriage.  If you bought a house for yourself before you were married, for example, that house is considered separate property.

The court doesn’t care about whose name is on the account when it’s time to divide property during a divorce. The court only looks at whether property is considered separate property or marital property and divides it accordingly.  

It’s also important to know that these rules apply to debt just the same as assets. If your spouse takes on a loan for any reason, debts that you and your spouse take on are marital property and get split between the two of you if you decide to divorce.

Commingled versus Non-Commingled Assets

Commingling is when you blend together funds from different sources. And the status of separate property as your sole possession depends on it not being commingled with marital property. For example in a 401(k), any money you earn in the account after you get married is marital property. 

It’s especially marital property if you move those funds into a joint bank account and there’s no way to restore its status as separate property. Your spouse would now be entitled to their share of that money or anything you purchase with it if you decide to divorce. 

Tampa High Income Divorce Attorney

You may be thinking, “Where can I find a divorce lawyer near me?” Anton Garcia Law’s family law attorneys are compassionate, experienced and dedicated to representing your best interests.  Contact us today!  Serving the following Florida areas:

• Tampa, St Petersburg
• Land O’ Lakes
• Lakeland
• Plant City
• Downtown Tampa

If you are looking for a Tampa family law attorney, look to Anton Garcia Law, a 2021 and 2022 SuperLawyer “Best Attorney” award winner. Our office is located near beautiful downtown Tampa, where we proudly serve clients from around the state of Florida.