Divorce can be a complicated process, depending on how long a couple has been married, how much and how many different kinds of assets they own, and whether or not they have children. The question of what constitutes a marital asset is a difficult one, especially for couples who brought a good amount of assets into their marriage. Fortunately, Florida has codified rules to guide a judge in the determination of which assets are to be included in the marital estate, and which are not.
Florida Statute 61.075(6)(a) lists five types of property that are included in the definition of marital property.
- Assets acquired during the marriage by either spouse individually, or jointly by both spouses are part of the estate. This rule applies even if the purchase money for the item came entirely from one spouse’s income. In cases where only one spouse works, and the other stays at home to take care of the household and children, all the working spouse’s income after the marriage occurred are part of the marital estate.
- Enhancement in value or increased appreciation of non-marital assets is a marital asset if the accretion results from the efforts of either spouse, and/or from the contribution of marital assets or funds to the non-marital asset. This rule applies when one spouse brings a business or an investment property into the marriage. If the other spouse contributes to the business or investment either financially with marital funds, or through working for the business, then the increase in value resulting from that spouse’s efforts would be considered marital property. In this case, an assessment would have to be made of the asset’s value before the marriage, as compared to its value at the time of the divorce to compute the portion that would be attributable to the marital estate.
- Interspousal gifts made during the marriage are presumed to be marital property. A spouse who wishes to assert that the gift was purchased by non-marital, or separate, property and that therefore it is not part of the estate, must prove the allegation by clear and convincing evidence.
- Vested and non-vested rights, benefits, etc. acquired during the marriage in retirement, annuity, deferred compensation, and other investment plans are considered part of the marital estate.
- All real or personal property held by the parties as tenants by the entirety is presumed to be marital property. An objecting spouse bears the burden of proof of showing by clear and convincing evidence that the property in whole or in part should be considered non-marital property.
Section 61.075(6)(b) lists the following as non-marital assets:
- Assets acquired before the marriage;
- Property acquired separately by noninterspousal gift, devise, bequest, or descent;
- Income derived during the marriage from non-marital assets, unless it was considered and used as marital property by the parties;
- Assets specifically excluded from marital property by agreement of the spouses.
- Any property obtained in exchange for non-marital assets during the marriage are also considered non-marital in nature.
Clearly, the determination of which assets are in the marital estate and which are to be excluded, is not a straightforward one. Often, it involves research to determine not only what assets are in play, but also where the assets originated, how they were treated during the marriage, and what their valuations are, both past and present. Particularly for individuals who have many types of property, acquired both before and after marriage, the assistance of a knowledgeable South Florida Divorce Attorney is indispensable. Please call the Law Offices of James S. Cunha, P.A. today at 1-800-558-1227 or 561-429-3924 to schedule a consultation.