What is the difference between marital and non-marital property?

According to Florida Statutes 62:

Property (real and personal) division pursuant to a disillusionment of marriage is sometime a complicated process but is usually calculated based upon the time and manner in which the property came into the possession of the parties. According to Florida law, the primary determining factor determining how, or if, an asset is divided is whether the asset is characterized as a marital asset or a non-marital asset.

According to statute, the following assets are looked upon as “marital” assets:

1) any asset that is acquired during a marriage, either jointly of individually, by either spouse.

2) The value of any enhancement and/or appreciation of any non-marital asset that resulted either from the efforts of either party during the marriage or from the contribution or expenditure of marital funds and/or other marital assets.

3) Interspousal gifts during the marriage..

4) All vested and non-vested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.

5) All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is non-marital.

6) All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is non-marital.

7) The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.

The following is a list of assets identified by statute as being “non-marital” assets:

1) Assets acquired by either party prior to the marriage, and assets acquired in exchange for such assets

2) Assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets

3) All income derived from non-marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;

4) Assets excluded from marital assets by valid written agreement of the parties, and assets acquired in exchange for such assets; and

All assets acquired by either spouse subsequent to the date of the marriage and not specifically established as non-marital assets are presumed to be marital assets. Such presumption is overcome by a showing that the assets are non-marital assets. The presumption is only for evidentiary purposes in the dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court. This section does not require the joinder of spouses in the conveyance, transfer, or hypothecation of a spouse’s individual property; affect the laws of descent and distribution; or establish community property in this state.

Once an asset is determined to be a marital asset, a decision must be made as to how the asset is divided. Florida is an equitable distribution state, meaning that the martial assets are divided on an equitable basis. The court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based, according to Florida Statutes 61.075, on all relevant factors, including:

1) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

2) The economic circumstances of the parties.

3) The duration of the marriage.

4) Any interruption of personal careers or educational opportunities of either party.

5) The contribution of one spouse to the personal career or educational opportunity of the other spouse.v

6) 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.

7) 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 non-marital assets of the parties.

8) 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.

9) 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.

10) Any other factors necessary to do equity and justice between the parties.

While it is clear that a house owned by one party prior to a marriage may be non-marital property at one time, and therefore not subject to equitable distribution, there is strong argument that, years into the marriage, the house no longer enjoys the same status. If you owned a house free and clear, with no mortgage, the value of the house the day you married would be considered a non-marital asset and not subject to equitable distribution. Any economic appreciation in the value of that home would be considered an asset and subject to distribution. If there was a mortgage on the house, and marital assets were utilized to reduce that mortgage and create additional equity in the house, that additional equity would also be considered a marital asset. Even is one spouse did not directly contribute to the reduction of the mortgage, their contribution to the marriage would create an interest in the equity resulting from the reduction in mortgage principle.

Divorce is a traumatic situation and presents many questions about support, child custody and property distribution. If you find yourself in a conflict what your rights are when it comes to the distribution of property, and what is marital, as opposed to non-marital, property, you need the advice of a qualified, experienced and compassionate attorney before making a major decision that could have a lifelong impact on the lives of you and your loved ones. Dan Newlin & Partners is exactly that type of law office. Call now for free advice on family law, and other legal issues. The call is free, but the advice could be priceless. Call Dan Newlin & Partners now at (407) 888-8000.