When a couple divorces, the judge will work to equitably divide the marital property while the couple will retain their separate property. This leads to the question, just how is separate property determined? The simplest way is with a prenuptial agreement that outlines all property and specifically defines what property is separate and what is marital. Unfortunately, many people don’t have such an agreement so they must work this out amongst themselves. If they are unable to divide the property for themselves, their divorce attorneys and the court will do it for them.
Property is considered separate (or nonmarital) if it was acquired by one party before the marriage. For instance, if a man bought a car before getting married, when the couple separated that car would remain his and be considered separate property. Property is also separate if it was gifted to one party during the marriage (other than gifts from the other spouse). So if a woman received an expensive necklace from her parents as a birthday present, she would keep that property and it would be considered separate.
It is also possible for property to be separate but have some marital assets included within them. For instance, if a woman had an IRA before she was married, that IRA would remain hers. But if money from the marriage was invested into that IRA, that money would be considered marital property and would be divided by the couple upon their divorce.
There also can be “comingling” where the marital and separate assets are mingled together. For instance, one spouse might have a checking and savings account that become marital property when both spouses have their paychecks deposited into it. A house that one party owns before the marriage can be marital property if both parties pay the mortgage and pay for upkeep on the home. This can become very complicated and in general it is best if the parties can agree on how to divide these assets amongst themselves. Otherwise, their divorce attorneys will have to advocate in front of a judge who will ultimately have the final say on how to divide these assets.
An experienced lawyer can help you determine which assets should be considered separate and while will be marital. By working to come to an agreement before litigation, a client can save significant amounts of money. If, however, an agreement cannot be reached, an experienced divorce lawyer will strongly advocate on your behalf in order to ensure you receive your equitable share of the property.
If you facing a divorce in West Palm Beach or anywhere in South Florida, the Law Offices of James S. Cunha can help. Our office has helped many clients through this difficult time and we will put that experience to work for you. To learn more about how marital property is determined in a Florida divorce, contact the Law Offices of James S. Cunha today to schedule a consultation.
