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Marital or Separate Property in Florida Divorces

A huge part of any divorce proceeding involves negotiating an equitable division of assets. In divorce, assets acquired during the marriage are marital and each party is entitled to a fair share. Separate property, on the other hand, is property that either spouse owned prior to the marriage, or received during the marriage by gift of inheritance. In most cases, separate property is not available for distribution. An exception is made when separate property is commingled with marital property, or used in such a way that is impossible to determine whether it was marital or separate property.

To help explain the concepts of marital property, separate property and commingling, let’s look at some examples.

Scenario 1: Lily and James have been married for 15 years. Lily owned a home prior to meeting James, and the couple moved into the home when they got married. After the marriage Lily transferred title to the home to herself and James as “tenants by the entirety.” At divorce, is the home marital or separate property?

Answer: Marital property. A transfer of separate property to the other spouse as tenants by the entirety makes it marital property.

Scenario 2: Same situation as in scenario 1, except that after the marriage Lily never transferred title to the house, nor did she refinance the mortgage to put James’ name on it. At divorce, is the home marital or separate property?

Answer: Probably separate. In this case, Lily is the sole owner of the home, as she never transferred an interest in the home to James. The burden would be on James to prove that the home was marital despite his name not being on the title or mortgage, for example if he came into the marriage with debt and the couple did not wish to run the risk that they could lose the house or have a lien placed on it by one of James’ debtors.

Scenario 3: Same situation as in Scenario 2, except that during the marriage James paid half of the monthly mortgage payment and contributed his own money and labor to major home improvements. At divorce, is the home marital or separate property?

Answer: Like in scenario 2, probably separate. However, any increase to the home’s value would be a marital asset, since James contributed money and effort into enhancing the value. He would thus be entitled to an equitable share of the increase in value.

Scenario 4: Lily and James sign a premarital agreement that states that any real property the couple lives in and uses as their marital home will be marital property in the event of divorce. After the marriage they move into Lily’s home, which she owned prior to marriage. She never transfers title to James, never puts his name on the mortgage, and he never contributes any of his money to the mortgage or upkeep of the home. At divorce, is the property marital or separate?

Answer: The home is marital property. Barring any evidence that Lily signed the prenuptial agreement under duress or without all of the relevant financial information, either spouse can agree to give away certain rights in premarital agreement.

Scenario 5: Halfway through the marriage James receives a $1 million inheritance from his father. He keeps the inheritance in a separate account in his sole name. When they divorce, is the inheritance marital or separate property?

Answer: The inheritance is separate property. Under Florida law any property received during the marriage by gift or inheritance is separate property.

Scenario 6: Same situation as in scenario 5, except that James deposits the inheritance in the couple’s joint savings account. When they divorce, is the property marital or separate?

Answer: Marital property. By placing the inheritance into a joint account, James essentially made a gift of the inheritance to Lily.

Scenario 7: James owned a motorcycle prior to marriage. During the marriage he traded in the motorcycle for a new one. It was titled in his own name. At divorce, is the motorcycle marital or separate property?

Answer: Separate property. Property one spouse acquires during the marriage due to the exchange of property he owned separately prior to the marriage retains its separate character.

Boca Raton Division of Assets Attorney

Dividing your assets during divorce can be confusing if you and your spouse own a mix of marital and separate assets. With more than 50 years’ combined experience helping clients in Boca Raton and the surrounding area, the divorce attorneys at Schwartz l White can help. Our experienced attorneys will sit down with you and thoroughly review your financial information to help you make sense of which assets are separate property and which may have become marital. Contact our office today at 561.391.9943, or complete our online form, to schedule a free initial consultation.

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