For the purpose of dividing assets during a divorce, assets are either categorized as marital or non-marital property. In general, assets acquired during the marriage are considered marital property, although there are exceptions. Non-marital or “separate” property is property that is not included in the marital estate and should not be subject to division by the court in a divorce proceeding. Instead, whichever party owns the non-marital asset would keep that asset after the divorce. A Florida divorce
attorney should be able to assist you in distinguishing 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 may not be limited to, the following:

Assets Acquired Prior to Marriage

Assets or property, such as houses, cars, or funds in a bank account, are treated as non-marital property if they were acquired before the marriage. They would not be included in the division of the estate and remain the property of the original owner. If you owned an asset prior to your marriage, it 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 property. For example, if you owned a rental building before you were married and the proceeds were never commingled with marital property—such as a joint bank account, or funding a new home you and your spouse
purchased—then it will probably be considered non-marital property.

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), it may be considered non-marital property. Gifts received by one spouse before or during marriage and not used for the benefit of the other spouse or placed in his or her name would be considered non-marital property. Assets received as inheritances—either before or during the marriage—would be considered non-marital property as long as they aren’t commingled with marital property. You will need
to show proof that this property was acquired as an inheritance or gift, including detailed financial records showing the source of the money.
For example, if you inherit $5,000 from a deceased aunt during your marriage, that money may be considered non-marital property. If you receive money as an inheritance and use it to purchase an asset,
such as a new vehicle, the asset is considered non-marital property if it is in your name, purchased solely with the non-marital inheritance funds, and not used for the benefit of your spouse. So, if you use your $5,000 inheritance to purchase a new motorcycle, it may be non-marital property so long as you meet the above criteria.

Income from Non-Marital Assets

Income from non-marital assets usually involves rental property owned by one spouse before the marriage. As long as the owner of the non-marital property keeps all proceeds separate from joint accounts and other marital property, these funds are usually treated as non-marital assets.

Assets and Property Excluded by Agreement

If both spouses agree to exclude certain assets from being marital property, either by prenuptial or post-nuptial agreement, the court would honor their decision. For example, if your prenuptial agreement says that you will be the sole owner of any house you purchase during your marriage, the court would honor that agreement even though assets purchased during marriage are usually marital property. However, you will need to prove that you both complied with rules for a legally enforceable agreement relating to pre- or post- nuptial agreements, so may be best to seek the help of a Florida Family Law lawyer for any prenuptial or post-nuptial agreements.

Personal Injury Awards

Personal injury awards received during marriage could be treated as either marital or non-marital property, depending on the reason they were given. Awards granted for loss of earnings are usually considered marital property, while 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 might deposit marital funds into a pre-marital bank account, or spend marital assets to pay the mortgage on a non-marital asset, like a building you already acquired before the marriage. In this case, if the parties can agree on which assets or portions of assets are marital and which are separate, the court will usually accept the agreement. If the parties can’t agree, the court will make the determination.

Apfelbaum Law has Florida Family Law attorneys to assist you with this and other matters relating to divorce. If you have questions or concerns about your assets, divorce proceedings, or other Florida legal services, contact Apfelbaum law at (772) 236-4009.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

CategoryFamily Law


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