What is the Difference Between Marital and Nonmarital Property in a Divorce?

Anyone who will be getting divorced in the Tampa area should learn about the difference between marital and nonmarital property, and what those differences will mean for their divorce. Under Florida law, only marital property is divided in a divorce whereas nonmarital property is not divided (and remains with the spouse who owns it). Both types of property include both assets and debts, and both assets and debts can be divided between spouses. In some cases, the classification of a particular asset or debt may not be so straightforward — the property may have characteristics of both marital and nonmarital property. Our Tampa divorce attorney can explain in more detail.

Defining Marital Versus Nonmarital Property in Florida 

Under Chapter 61 of the Florida Statutes, marital property, or “marital assets and liability,” includes all of the following forms of property:

• Assets acquired or debts incurred after the date of marriage, either jointly by both spouses or individually by one of the spouses;
• Enhance or increase in value or appreciation of any nonmarital assets because of either spouse’s efforts during the marriage, or because of the expenditure of marital funds, or both;
• Reduction in nonmarital debt due to payments from marital funds, and/or passive appreciation of nonmarital property due to the debt being paid down by marital funds;
• Gifts made between the spouses (“interspousal gifts”) during the marriage;
• Vested and nonvested benefits and funds that accrue during the marriage;
• Marital interests in a closely held business;
• Real property held by the spouses as tenants by the entireties; and
• Personal property held by the spouses as tenants by the entireties.

The Florida Statutes define “nonmarital assets and liabilities” to include the following:

• Assets acquired or debts incurred by either spouse prior to the marriage;
• Any assets or debts owned by one of the spouses in exchange for property acquired prior to the marriage;
• Real or personal property acquired by either spouse separately during the marriage by gift (or than an interspousal gift) or inheritance, or acquired in exchange for one of those assets;
• Income derived from nonmarital assets unless it was treated, used, or relied on as a marital asset;
• Any property expressly excluded from marital assets and liability through a premarital or postnuptial agreement; and
• Any liability incurred through a forged or unauthorized signature of the other spouse.

Handling Commingled Property 

In some cases, the classification of a particular asset may have qualities of both marital and nonmarital property. For example, one of the spouse’s earnings prior to the marriage that were placed in a savings account might have been used to put a down payment on a shared home after the date of marriage. Or, for instance, spouses might decide to deposit nonmarital funds into a marital bank account. In such scenarios, the property is considered transmuted or commingled.

Real estate and bank accounts are among the most commonly commingled and transmuted forms of property. Typically, a court will try to determine what percentage or portion of the property is nonmarital and which is marital. To find out more about how a specific asset or debt is likely to be handled, you should seek detailed advice from an attorney in Tampa.

Contact a Tampa Divorce Attorney Today 

If you are planning to file for divorce or have been served with divorce papers, it is critical to understand the difference between marital and nonmarital property since the difference will determine which assets and debts will be distributed between you and your spouse. If you have questions about the likely classification about a particular asset or debt, or if you have concerns about the commingling or transmutation of certain property, an experienced Tampa divorce lawyer at The Law Office of Laura A. Olson, P.A. can assist you. Contact us today for help with your case.

Source: 

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html