Marital vs Non-Marital Assets in Florida

Figuring out who gets what during a divorce isn’t up to one spouse laying claim to the house, the car, or the good silver. Florida is an equitable distribution state. That means the court assumes both spouses have a 50-50 split of their shared assets.

Seems simple enough, right?

Unfortunately, it’s not. Dividing assets in a divorce is anything but simple. And, if the divorce is contested and the couple can’t come to an agreement, dividing property is usually the bottleneck in an otherwise smooth divorce.

To understand the many nuances of marital vs. non-marital property in Florida, let’s start with the basics.

What is Marital Property in Florida?

The general rule is that a marital asset is any asset acquired during the marriage.  Here’s a breakdown of what constitutes a marital asset and how you can begin to determine which assets you and your spouse share going into your divorce.

Assets Acquired During Your Marriage 

Assets purchased or acquired while you and your spouse were married are marital property. This is true even if an asset was acquired by only one spouse. The general rule is that marital assets are those assets acquired during the marriage and are created or produced by work efforts, services, or earnings of one or both spouses.

Even more surprising to some couples is that this rule extends to assets only in one spouse’s name. For instance, if you purchased a car with your own money and the car is in your name only, that car is still considered in Florida to be a marital asset.

Read: Alimony Case Examples – What is Marital Property?

Non-Marital Assets that Increased in Value During Your Marriage

If one spouse purchased an asset, like a home, before the marriage, you’d assume that asset is a non-marital asset. However, any appreciation or added value earned by that asset during the marriage is considered a marital asset. So, if one spouse’s home appreciates in value during the marriage, the amount of appreciation is a marital asset even if the home is still in only one spouse’s name.

When one spouse owns a business that they began before their marriage, things can get even more complicated. Especially if the other spouse gets involved with the business and contributes to its success over time. The increase in the value of the business during the marriage is looked at as marital property.

Gifts Given to One Another During Your Marriage

A gift given from one spouse to the other is a marital asset. Most spouses assume that if they receive a gift, then that gift is their non-marital property. In actuality, that gift is still considered a marital asset. So, under Florida law, the gift-giver still retains partial ownership over the asset.

Gifts, like most marital and non-marital asset divisions, aren’t always cut and dry, though. The spouse who receives the gift can try to prove that the asset is, in fact, non-marital using fact-based evidence. If they’re successful, that non-marital asset may not be divided between both spouses.

Property Held by You and Your Spouse as Tenants by Entirety

When spouses jointly own property as tenants by entirety, that property is a marital asset. Tenants by entirety is a form of ownership that can only be held by married couples. While jointly owned, properties owned in this manner look at both owners as one legal entity. So, if one spouse dies, the other spouse assumes sole ownership of the property.

If you and your spouse are tenants by entirety and decide to divorce, the property is still looked at as a marital asset that must be divided. Therefore, a court can order that you and your spouse sell the property and evenly split the profits.

If you decide that you want to maintain ownership of the house after your divorce, you’ll have to show the court ‘clear and convincing evidence’ that the house is, in fact, non-marital property.

Read: Case Examples of Alimony And The Marital Residence

Your and Your Spouse’s Retirement Benefits

Your retirement or insurance plan is also fair game in the division of marital assets. This can come as a surprise to some couples. However, the division of assets here isn’t cut and dry.

If you began your retirement account before your marriage, the value of the account when you were married is considered a non-marital asset. From the day you said ‘I do’ and onward, any appreciation or growth in that account is considered a marital asset.

What is Non-Marital Property in Florida?

By now you can probably see how complicated the division of assets can get during a divorce. We discussed marital assets being assets acquired during the marriage. However, there are some exceptions. And, there are some assets that remain non-marital even during the marriage.

Non-marital assets are assets not subject to division by the court after a divorce. Understanding what constitutes a non-marital asset is an important part of ensuring you maintain ownership of what’s yours after your divorce. Here’s a general breakdown of the types of assets considered non-marital in Florida.

Assets You Acquired Prior to Your Marriage 

Simply put, assets and property that you acquired before your marriage are treated as separate property when you divorce. Going even further, if that non-marital asset was sold and the profits used to purchase another asset, a case can be made that the newly purchased asset is also non-marital.

Property Acquired by Inheritance or Other Non-Interspousal Gift

Florida courts typically look at gifts received through inheritance as belonging only to the inheriting spouse and, therefore, as non-marital property. The same goes for a non-interspousal gift intended for only one spouse. Gray areas can start to emerge if that inheritance or gift is used jointly by both spouses, however.

Income That You Earn from a Non-Marital Asset

This can be another gray area, but typically the court views income you earn from a non-marital asset as a non-marital asset. This is usually seen in rental property ownership when one spouse purchased the property before the marriage. The gray area comes into play if that earned rental income is placed in a joint account or to purchase other marital property.

Any Assets You Agree to Exclude from Your Marital Property

If you and your spouse enter into a prenuptial or postnuptial agreement, you can decide to exclude assets that would otherwise be considered marital and declare them non-marital. This would exclude those assets from being divided during a divorce.

Dividing Assets Can Become Even More Complicated When Your Marital and Non-Marital Property is Combined

If You and Your Spouse Commingled Property

If you had an individual banking account before you were married and you added your spouse to the account after your marriage, you commingled a non-marital asset with a marital one. The waters get murky here when you attempt to untie those assets during a divorce. The same goes for any joint expenses you pay from your individual banking account.

Any Debts or Other Liabilities You Share

If you and your spouse owe money in the form of debts, like on a credit card used to buy shared expenses, that debt is yours to split. If, however, one of you acquired debt on your own to purchase a non-marital asset, paying off that liability is usually the responsibility of the spouse who incurred the debt.

Related: How to Divide Marital Assets in Florida During a Divorce

‘Final Means Final’ When You’re Dividing Marital and Non-Marital Property in Florida

The court’s decision of how to divide your marital and non-marital property in Florida is final and cannot be undone. This is one of the many reasons why dividing your assets during a divorce in Florida is such a crucial step in the process.

Before you begin, gather evidence and documentation of ownership of your assets, be ready to discuss the details of how you acquired your non-marital assets, and have an experienced Florida divorce lawyer with you to advocate on your behalf and help you get the outcome you deserve.

Contact us today for a free family law case evaluation. We’ll listen to your case and explain your rights. When you’re ready to work with an experienced Florida family law and divorce lawyer to divide your marital and non-marital property, please fill out the form on our Contact Us page or give us a call at (954) 880-1302.