In a Florida divorce, a couples’ assets and liabilities will be totaled and categorized as either being marital or non-marital. Once property is identified as marital the courts will find that, upon divorce, the property should be divided equally. Fla. Stat. Sec. 61.075(1). Non-marital property shall be assigned or left in the spouse’s name whose non-marital property it is. Fla. Stat. Sec. 61.075(6)(b)(1)
The first step to determining what assets are marital and what assets are non-marital is finding out what assets exists in either party’s names or within their control. The process of discovering these assets is literally called discovery. Once discovery is thoroughly completed, the formal analysis regarding division of assets can begin.
In Florida, property earned, obtained and accumulated during the marriage is marital property. In other words, if you earned it and saved it while you were married, it’s marital property. Fla. Stat. Sec. 61.075(6)(a)1a.
New assets acquired stop being marital after “the cut off date.” “The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.” Fla. Stat. Sec. 61.075(7)
A single asset may have a marital and a non-marital portion. Retirement funds and pensions, vested or not, are marital property for the period of which they were accumulated and increased in value during the marriage. Fla. Stat. Sec. 61.075(6)(a)1d.
Property acquired by either spouse before marriage is non-marital property. Fla. Stat. Sec. 61.075(6)(b)(1)
Gifts and Inheritances acquired during the marriage by an individual spouse are not marital. Fla. Stat. Sec. 61.075(6)(b)(2)
All of the above rules are merely presumptions in Florida and either party can overcome the presumption and declare marital property to be non-marital or non-marital property to be marital by claiming an exemption and proving by a preponderance of evidence that the exemption applies.
There are numerous exemptions in both the statute and the case law. Below are just a few of the more common exemptions that can be pursued:
Non-marital property can become marital property when those items are “enhanced” by martial funds or marital labor. Fla. Stat. Sec. 61.075(6)(a)1b. Non-marital property can become marital property by commingling or placing both spouses’ names on the asset. Farrior v. Farrior, 712 So. 2d 1154 (Fla. 2 DCA 1998).
The spouse that does not hold the non-marital asset can still make a claim on that asset’s increase in value. Kaaa v. Kaaa, 58 So. 3d 867,868 (Fla. 2010)
Property purchased during the marriage is marital but if purchased using funds that were non-marital, that property may be considered non-marital despite the marital time of acquisition. Adkins v. Adkins, 650 So. 2d 61 (Fla. 3d DCA 1994)
A marital asset can become non-marital if the parties contract to do so in a post-nuptial agreement.
Liabilities such as loans or debts can also be classified as marital or non-marital and thus determine who will be responsible for those liabilities after the divorce is finalized. The same “cut off” rule applies for liabilities. A loan taken out the day before a divorce filing will be held to be a marital liability. Gibbons v. Gibbons, 10 So. 3d 127 (Fla. 2d DCA 2009)
Finally, even if all the assets and liabilities are squarely determined as being either marital or non-marital, the court is not strictly bound by the 50/50 split for marital assets and the complete award of non-marital assets rule. The court can still distribute the assets any way it likes based on the following factors:
“The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.” Fla. Stat. Sec. 61.075(1)
Of course all of these laws are moot if there is a valid prenuptial agreement between the two parties.
A divorce and family law lawyer needs to guide you through what will will happen and what may happen to all of your property before you begin any preparations or negotiations in your pending divorce. Contact my Naples, Florida family law office to learn more about what marital property is…and what it isn’t.