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Classifying Marital and Nonmarital Property


When a married couple gets divorced in the Orlando area, part of the divorce process involves property division or property distribution. This is a process in which the court divides marital assets and liabilities according to a theory known as equitable distribution. When property is distributed equitably, it is divided between the parties in a manner that is fair to both of them based on a variety of factors outlined in the Florida Statutes (Fla. Stat. § 61.075). While the equitable distribution usually means that property is divided equally between the parties, it is important to recognize that equitable does not mean equal. But how do Florida courts even determine what property is subject to distribution?

Unless the parties agree to a property settlement, the court will divide marital property. To be clear, marital property is divisible, but nonmarital (or separate) property is not divisible. We will say more about what is classified as marital property and what is classified as nonmarital property, and we will also discuss situations in which the demarcation between the two is not so clear.

Defining Marital Property Under Florida Law 

According to Florida law, marital assets and liabilities include the following:

  • Assets acquired during the marriage by either spouse, whether they acquired the assets individually or together;
  • Liabilities acquired during the marriage by either spouse, whether they acquired the assets individually or together;
  • Enhancement in value of nonmarital assets as a result of the efforts or contributions of either party during the marriage or as a result of contributions of marital assets;
  • Passive appreciation in real property when the original mortgage note is paid down using marital assets during the marriage;
  • Interspousal gifts during the marriage, meaning gifts given to one spouse by the other; and
  • All benefits, rights, and funds accrued during the marriage, including retirement benefits, pensions, profit-sharing funds, annuities, deferred compensation, and insurance plans.

Any property that falls into the categories listed above typically is subject to distribution in a Florida divorce.

Defining Nonmarital Property 

Nonmarital property is not divisible in a divorce proceeding. According to the statute, nonmarital assets and liabilities—also known as separate property—include the following:

  • Assets acquired by either party prior to the marriage;
  • Assets acquired by either party in exchange for assets initially acquired prior to the marriage;
  • Liabilities acquired by either party prior to the marriage;
  • Gifts given to only one of the parties during the marriage;
  • Inheritances to only one of the parties during the marriage;
  • Income derived from nonmarital assets during the marriage;
  • Any assets or liabilities expressly designated as marital property through a premarital agreement; and
  • Any liability fraudulently incurred by the forgery or unauthorized signature of one spouse by the other spouse during the marriage.

Commingled Property and Seeking Advice from an Orlando Divorce Lawyer 

Dividing marital assets and liabilities can get particularly complicated when marital and nonmarital property is mixed, or “commingled.” For example, if one spouse uses nonmarital assets to pay for a home during the marriage, or if one spouse deposits nonmarital assets from an individual bank account into a shared joint bank account during the marriage for use by both spouses, it can be difficult to trace out what portion of the asset is marital and what portion is nonmarital.

In some cases, courts can trace out proportions of non-divisible property, but it is important to work with an experienced Orlando family lawyer on your case. Contact Goodblatt-Leo to discuss your case with an advocate today.



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