In Florida non-marital property is clearly defined by § 61.075(6)(b), Florida Statutes. In general, Florida law provides that non-marital property includes any assets acquired or liabilities (debts) incurred by either the husband or wife prior to the marriage, including assets acquired or liabilities incurred in exchange for those pre-marital assets or liabilities. Assets that one spouse receives during the marriage that are either “noninterspousal” gifts (meaning not a gift from the other spouse) or an inheritance will be non-marital property. Any income that comes from non-marital assets is non-marital property, unless that income was treated, used, or relied upon by the parties as a marital asset.
Further, if the parties have entered into a valid written agreement that states certain property will be considered non-marital, then that property will in fact be treated as non-marital property by the court. Finally, any assets acquired or liabilities incurred after one spouse files for the divorce or after the parties enter into a separation agreement, will be considered non-marital property.
When an asset or a liability (debt) is identified by the court as “non-marital” property then it will not be included in the court’s equitable distribution. In other words, non-marital property will remain the property of the party that owns it after the divorce is finalized and it will not be split between the parties by the court.
Keep in mind that in certain circumstances non-marital property may transform into marital property. For instance, if one spouse “gifts” all or part of his or her “non-marital” property to the other spouse, then it may transform to marital property. To prove that a gift occurred, it must be established that 1) the gifting spouse had donative intent; 2) the property was delivered or the other spouse now possesses the property; and 3) the surrender of dominion and control of the gift. See Hooker v. Hooker, 220 So.3d 397 (Fla. 2017).
Further, Florida courts recognize the concept of the “comingling” of property. When it can be shown that non-marital property has been comingled with marital property then all or part of the property may become marital property.
To learn more about how a court will view your property or to get your questions answered call us at 954-990-9307 or email Scott at Scott@scottjkalishlaw.com. Click here to learn more about divorce in Florida.