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What is Marital and Non-Marital Property in a Divorce?

Posted on November 12, 2015

Once decisions are made about custody and child support, one of the big items still left to settle in many divorces is how to deal with division of marital property. This process can be easy if the divorcing couple does not own very much or the split is amicable. However, in dissolutions involving a lot of property or a couple that is extremely at odds with one another, property divisions can be a tricky process. A recent article in The Washington Post discusses the issues that arise during the sale of the marital home, typically the largest asset of the divorcing couple. The article looks at the different options available to dispose of the property – from buying out one spouse to nesting, an arrangement where both spouses remain the house for certain period of time to prevent further disruption to the children. This article assumes the house is marital property, which is the case the vast majority of divorces, but in order to better understand how property is divided in a divorce, it is essential to know what exactly qualifies as marital and non-marital property under Florida law. A discussion about this distinction will appear below.

Marital Property

The default for the division of marital property in Florida is a 50/50 equitable distribution plan. The court will consider a number of factors that may override equal division, but that is always the starting point in any divorce case.

Florida law considers any of the following to be marital property:

  • assets and liabilities acquired during the marriage individually or jointly;
  • gifts between spouses;
  • non-marital property that increases in value during the marriage due to efforts of either spouse and/or the use of marital funds and other assets;
  • benefits and rights earned in retirement, pensions, profit-sharing, annuities, deferred compensation and insurance plans acquired during the marriage;
  • any real property owned by either spouse, including separate property brought into the marriage, but a spouse can make a claim the property is non-marital; and
  • personal property jointly owned by the spouses.
Non-Marital Property

Florida statutes also provide for the types of property considered non-marital. They are:

  • assets and liabilities acquired before marriage and any assets or liabilities received in exchange for them;
  • separately owned assets received through inheritance or gift and any assets received in exchange for them;
  • income from non-marital assets earned during the marriage, unless the spouses used or relied on the income for marital purposes;
  • assets or liabilities excluded from marital property by a written agreement; and
  • liabilities assumed through forgery of a spouse’s name by the other spouse (this liability will remain with the spouse who made unauthorized use of the other spouse’s name).

Non-marital property that increases in value during the marriage due to the efforts or use marital funds can be challenging to the court. A judge will determine how much of the value is derived from the marital contribution in order to excise out the non-marital value so that non-marital portion is not included in the property distribution between the spouses. Additionally, premarital gifts, such as an engagement ring, are not considered marital assets.

Get Help

Figuring out how to divide property during a divorce can be very complex with a lot of factors to consider, and even if you intend to draft a private agreement with your spouse on this issue, it is best to consult an attorney to ensure the division is truly fair. Serving clients in the Fort Lauderdale area, Stok Kon + Braverman offers legal representation on aspects of divorce. Contact us today to schedule a consultation.

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