By Larry Schott, Florida Family Law Attorney  |  Schott & Tolchinsky, P.A.

One of the first things a Florida court does in any divorce is draw a line between what belongs to the marriage and what belongs to each spouse individually. Assets on one side of that line get divided. Assets on the other side stay with whoever owns them. The legal terms are marital property and non-marital property, and where each asset lands makes an enormous difference in what each spouse walks away with.

This classification is also where some of the most complicated and bitterly contested disputes in Florida divorce law arise. The line between marital and non-marital is not always where people expect it to be. Assets people assume are theirs alone turn out to be subject to division. Assets they thought were jointly owned turn out to have a protected non-marital component. And the way a couple managed their finances during the marriage can change the character of an asset entirely, often without either of them realizing it at the time.

1. What Counts as Marital Property in Florida

The general rule under Florida Statute 61.075(6)(a) of the Florida Statutes is that marital property is anything either spouse acquired during the marriage, regardless of whose name is on it. That rule is broader than most people expect.

It does not matter if only one spouse earned the money or made the purchase. It does not matter if the asset is titled in one spouse’s name alone. If it was acquired or earned during the marriage, it is presumed to be marital property and subject to equitable distribution.

Categories of marital property under Florida law include:

• Income earned by either spouse during the marriage, regardless of how it was spent or saved
• Real estate purchased during the marriage, even if titled in only one spouse’s name
• Personal property purchased with marital income during the marriage, including vehicles, furniture, artwork, and jewelry
• The marital portion of retirement and pension accounts — meaning the amount that accrued from the date of marriage to the date of filing
• Business interests developed or grown during the marriage
• Gifts from one spouse to the other during the marriage — these are interspousal gifts and are classified as marital under § 61.075(6)(a)3
• The appreciation in value of non-marital assets resulting from the efforts of either spouse or the expenditure of marital funds

That last category, appreciation of non-marital assets, is one of the most frequently misunderstood and most litigated aspects of Florida property law. It is addressed in its own section below.

2. What Counts as Non-Marital Property in Florida

Non-marital property is excluded from equitable distribution entirely. The court sets it aside to the owning spouse and does not include it in the division of the marital estate.

Under Florida Statute 61.075(6)(b), the following are classified as non-marital assets:

• Assets acquired by either spouse before the marriage
• Assets received by either spouse as a gift from a third party during the marriage — so long as the gift was clearly intended for only one spouse and was kept separate
• Assets received by inheritance, whether before or during the marriage — provided they were not commingled with marital funds
• Income derived from non-marital assets during the marriage, unless that income was treated and relied upon as a marital resource by both spouses
• Assets and liabilities excluded from the marital estate by a valid written prenuptial or postnuptial agreement
• Assets purchased in exchange for non-marital property, provided the non-marital character of the source funds can be traced

The critical word in most of these categories is “kept separate.” Non-marital property that gets mixed with marital funds, used for joint purposes, or transferred into joint ownership can lose its non-marital character entirely. That is the commingling problem, addressed in detail below.

3. Quick Reference: Marital vs. Non-Marital

4. Active vs. Passive Appreciation of Non-Marital Assets

This is a distinction that matters enormously in longer marriages and is often not understood until a divorce is underway.

When a non-marital asset increases in value during the marriage, that appreciation may or may not be marital property and the answer depends entirely on how the appreciation occurred.

Active appreciation is growth that resulted from the efforts of either spouse or the contribution of marital funds. Under 61.075(6)(a)2, this is marital property. If a spouse owned a rental property before the marriage and then spent marital time and money improving it, renovating it, and managing tenants, the increased value from those efforts belongs to the marriage. The same logic applies to a business. If one spouse founded a company before the wedding and the other worked in it unpaid, or both spouses devoted marital effort to growing it, the appreciation in the business value during the marriage is a marital asset even though the underlying business is not.

Passive appreciation is growth that occurred simply because of market forces, with no contribution from either spouse. A pre-marital investment account that grew in value because the stock market went up, without any marital funds being added and without either spouse managing it actively, is generally non-marital property.

The distinction can be difficult to establish in practice, particularly with real estate and businesses where passive and active appreciation are intertwined. Forensic accountants and business appraisers are frequently needed in these cases to separate the marital component from the non-marital one.

5. Commingling: When Non-Marital Property Becomes Marital

Commingling is one of the most common ways people lose non-marital property without realizing it. It happens when a non-marital asset is mixed with marital funds or placed into joint ownership in a way that makes the two indistinguishable from each other.

The most frequent example is cash. A spouse inherits $100,000 before or during the marriage and deposits it into the joint checking account. From that point forward, the account receives regular payroll deposits, pays joint bills, and is drawn on by both spouses. The $100,000 does not stay in the account waiting to be identified — it circulates along with everything else. At the point where those funds can no longer be traced back to their non-marital origin, they have lost their separate character.

The same principle applies to real property. If you add your spouse’s name to the deed of a home you owned before the marriage, you have placed a non-marital asset into joint ownership. That transfer creates a presumption that you intended to make a gift of half the property, and clearing that presumption requires clear and convincing evidence to the contrary.

Other common commingling scenarios include:

• Using premarital savings as a down payment on a jointly titled home purchased during the marriage
• Depositing rental income from a premarital property into a joint account used for household expenses
• Using an inheritance to pay off a joint mortgage or credit card balance
• Funding marital investments with premarital brokerage account withdrawals
• Using non-marital business revenues to pay joint personal expenses

6. The Tracing Requirement

When a spouse claims that an asset is non-marital, the burden is on them to prove it. The vehicle for doing that is called tracing: producing documentary evidence that establishes the non-marital origin of the asset and demonstrates that it remained separate throughout the marriage.

Tracing becomes harder as time passes and as assets move through multiple forms. If premarital savings were used to buy a car, and then that car was sold and the proceeds used to buy stocks, and then those stocks were sold and the money went into a joint account, the chain of title may be impossible to reconstruct. Courts are generally not sympathetic to claims of non-marital character when the documentation does not exist to support them.

What tracing typically requires: bank records showing the source deposit, account statements showing the funds were kept separate, documentation of the purchase of any subsequent asset using those funds, and evidence that no marital funds were mixed in along the way.

If you are heading into a divorce and believe you have significant non-marital assets, gathering this documentation as early as possible before the divorce is filed if you can makes the classification process significantly more straightforward.

7. Retirement Accounts

Retirement accounts present a specific classification challenge because they often span both the premarital and marital periods. The general rule is straightforward: the portion of the account that existed on the date of the marriage is non-marital, and the portion that accrued from the date of marriage through the date of filing is marital.

In practice, separating those two portions requires account statements from the date of marriage and a calculation of the growth attributable to marital contributions versus premarital balance. For defined contribution plans like a 401(k), this is relatively manageable with documentation. For defined benefit pension plans, the calculation can be significantly more complex and may require an actuary.

Dividing the marital portion of a retirement account typically requires a Qualified Domestic Relations Order (QDRO) for employer-sponsored plans. A QDRO is a separate court order, distinct from the final judgment of dissolution, that instructs the plan administrator how to divide the account. Without a properly drafted and approved QDRO, the division may never actually occur regardless of what the settlement agreement says.

8. Property Held as Tenants by Entirety

Tenants by entirety is a form of joint ownership available only to married couples. Both spouses own the entire property together as a single legal unit rather than as individual owners of separate shares. It is the most common way married couples hold real estate in Florida.

Property held as tenants by entirety is marital property. When the marriage ends, the tenancy by entirety terminates and the property becomes subject to equitable distribution. If you and your spouse jointly own a home as tenants by entirety and cannot agree on what to do with it, the court will decide most likely ordering a sale with equal division of the net proceeds, though other arrangements are possible depending on the circumstances.

9. Prenuptial and Postnuptial Agreements

The most reliable way to define what is and is not marital property is a valid written agreement between the spouses. A prenuptial agreement (signed before the marriage) or a postnuptial agreement (signed during the marriage) can designate specific assets as non-marital and exclude them from equitable distribution, even if they would otherwise qualify as marital under Florida Statute 61.075.

These agreements must meet specific legal requirements to be enforceable in Florida. They must be in writing, signed voluntarily by both parties, supported by full financial disclosure, and not be the product of fraud, duress, or coercion. A court will also look at whether the agreement is fundamentally unconscionable at the time of enforcement.

For a full discussion of how prenuptial and postnuptial agreements work in Florida, see our guide: Florida Prenuptial and Postnuptial Agreement Guide.

10. How to Protect Your Non-Marital Assets

If protecting non-marital property is important to you, whether before or during a marriage, the strategies are the same ones courts look at when evaluating whether an asset remained separate.

Keep separate property in accounts titled in your name alone. Do not deposit marital income into those accounts and do not use them for joint expenses. If you receive an inheritance or a third-party gift, open a dedicated separate account for it immediately and keep it there. Document everything: account statements, the original source of the funds, and the chain of ownership if the asset changes form.

If significant assets are involved, consider a prenuptial or postnuptial agreement. A properly drafted agreement removes the ambiguity entirely. Courts enforce valid written agreements and are not required to engage in the classification analysis when the parties have already resolved the question by contract.

And if you are already in a divorce and believe you have non-marital assets that are being contested, act quickly. The sooner you start gathering documentation and working with your attorney to establish the tracing record, the stronger your position will be.

Related Articles:

• How to Divide Marital Assets in Florida During a Divorce
• Is My Spouse Entitled to My Personal Injury Settlement?
• Florida Prenuptial and Postnuptial Agreement Guide
• Case Examples of Alimony and the Marital Residence
• Alimony Case Examples: What is Marital Property?