For the purpose of dividing assets during a divorce, assets are either categorized as marital or non-marital property. Non-marital or “separate” property involves everything that is not included in the marital estate; therefore, the court should not subject it to division in a divorce proceeding. Instead, whichever party owns the non-marital asset would keep it after the divorce.
A Florida divorce attorney should be able to help you distinguish between marital vs. non-marital property, and guide you through a divorce proceeding when the characterization of property is in dispute.
Non-marital property includes, but is not limited to, the following items.
Background information: What is Marital Property?
Marital property in Florida includes assets and debts acquired during the marriage. Regardless of title, everything that was obtained during the marriage is considered marital property. For personalized guidance, consult an attorney.
Assets Acquired Prior to Marriage
Assets or property, such as houses, cars, or funds in a bank account, which a party acquired before the marriage are treated as non-marital property. They would not be divided as part of the estate and would remain the property of the original owner. If you held an asset prior to your marriage that has remained only in your name, and has never been used for the benefit of your spouse, it will likely be treated as non-marital.
For example: if you owned a rental building before marriage and never mixed its profits with marital assets (e.g., a joint bank account or funding a new home with your spouse), it would likely be considered non-marital.
Assets Acquired by Gift or Inheritance During the Marriage
If one spouse receives an asset as an inheritance or a gift (from someone other than the other spouse), the court may consider it as non-marital property. Gifts received by one spouse before or during marriage that were not used for the advantage of the other spouse or placed in their name are considered non-marital property.
Inheritances received before or during the marriage are non-marital property if not mixed with marital assets. To support this, the party must provide evidence of the inheritance or gift, including detailed financial records proving its source.
For example: if you inherit $5,000 from your deceased aunt during your marriage, that money may be non-marital property. Similarly, if you use inheritance funds exclusively to buy an asset, like a new vehicle, and it’s in your name without benefiting your spouse, it may also be considered non-marital.
Income from Non-Marital Assets
Income from non-marital assets generally comes from rental property or other investments owned by one spouse before the marriage. As long as its owner keeps all earnings separate from joint accounts and other marital property, these funds are usually considered non-marital assets.
Assets and Property Excluded by Agreement
The court will uphold a prenuptial or postnuptial agreement in which both spouses agree to exclude specific property from being marital property.
For example: If your prenuptial agreement states that you will be the only owner of any house purchased during your marriage, the court will honor that agreement, despite the general rule that assets acquired during marriage are usually considered marital property.
However, to ensure a prenuptial or post-nuptial agreement is legally enforceable, it is advisable to consult a Florida Family Law lawyer who can assist you in meeting the required standards, laws, and rules. Contact one of our Family Law attorneys at Apfelbaum Law.
Personal Injury Damages Awards
What is it? A personal injury damages award generally covers the cost of medical care related to an accident, including reimbursement for past treatment as well as compensation for future medical expenses suffered as a result of the incident.
During marriage, the way personal injury awards are classified (marital or non-marital) will depend on the reason they were given. Awards granted for loss of earnings are usually considered marital property, whereas awards for pain and suffering are considered non-marital assets.
Other Considerations
These rules generally determine what is non-marital property, but there are some special considerations.
Commingling of property happens when a spouse mixes non-marital assets with marital assets.
For example, you could deposit marital funds into a pre-marital bank account or use marital assets to cover the mortgage on a non-marital asset, such as a building purchased before the marriage. In these cases, if the parties can agree on whether their assets are marital or separate, the court will often accept their agreement. If the parties are unable to reach an agreement, the court will make the decision.
Apfelbaum Law has Florida Family Law attorneys who can help you with these and other divorce-related concerns. If you have questions or concerns about your assets, divorce proceedings, or any other Florida legal services, contact Apfelbaum law at (772) 236-4009 or contact us.
Disclaimer: This publication is intended for general information only and should not be taken as legal advice. Individual circumstances may differ, thus it is advisable to consult with an expert or lawyer for personalized guidance. Please contact the author if you require special technical or legal assistance regarding the information given.
