In Florida, understanding the difference between marital and non-marital property is crucial during a divorce. Non-marital property refers to assets or liabilities that are excluded from equitable distribution, meaning they remain the sole property of the original owner.
Our legal team specializes in identifying separate vs marital property to ensure your interests are protected during the asset division process. This article will break down what qualifies as non-marital property, how it is treated under Florida law, and scenarios where it might transform into marital property. If you wish to protect your assets before marriage, we can also assist in drafting a prenuptial agreement tailored to your needs.
| Property Type | Marital Property (Subject to Division) | Non-Marital Property (Not Divided in Divorce) |
|---|---|---|
| Assets Acquired Before Marriage | No (except if commingled) | Yes |
| Assets Acquired During Marriage | Yes | No (unless gifted separately) |
| Gifts & Inheritances | No (if kept separate) | Yes |
| Retirement Accounts & Pensions | Yes (portion earned during marriage) | No (portion earned before marriage) |
| Business Ownership | Yes (if started or expanded during marriage) | No (if fully owned before marriage) |
| Real Estate | Yes (if purchased together) | No (if owned separately before marriage) |
| Debts & Liabilities | Yes (if incurred during marriage) | No (if solely in one spouse’s name before marriage) |
What Does Florida Law Say About Non-Marital Property?
In Florida, non-marital property is defined under § 61.075(6)(b), Statutes. According to the law, non-marital property includes:
- Assets acquired or liabilities incurred before the marriage: This includes any property or debts brought into the marriage. For example, a home purchased by one spouse before the marriage remains their non-marital property.
- Assets acquired in exchange for pre-marital property: If an asset purchased during the marriage is funded with pre-marital money, it is considered non-marital property.
- Noninterspousal gifts or inheritance: Any gifts received from third parties (not from the spouse) or inheritances during the marriage are non-marital property.
- Income from non-marital property: Income derived from non-marital assets remains non-marital property unless it is treated, used, or relied upon as a marital asset by both parties.
- Written agreements: Property specified as non-marital in a valid prenuptial agreement or other written agreements will also be considered non-marital property.
What Happens to Non-Marital Property in a Divorce?
When a court identifies property as non-marital, it will not be subject to equitable distribution. Instead, it remains the sole property of the original owner after the divorce is finalized.
Equitable Distribution and Non-Marital Property
Florida courts follow the principle of equitable distribution for dividing marital property in a divorce. However, non-marital property is excluded from this division. This means the court will not divide non-marital assets or liabilities between spouses.
How Can Non-Marital Property Transform Into Marital Property?
While non-marital property is typically excluded from division, it can become marital property under certain circumstances, including:
1. Gifting Non-Marital Property to the Other Spouse
If one spouse gifts all or part of their non-marital property to the other spouse, it may transform into marital property. For a gift to be established, the following must be proven:
- The gifting spouse had donative intent (the intention to give the property as a gift).
- The property was delivered, or the other spouse possesses it.
- The gifting spouse surrendered dominion and control of the property.
A case, Hooker v. Hooker, 220 So.3d 397 (Fla. 2017), provides a detailed precedent for this process.
2. Commingling Non-Marital Property with Marital Property
Important
Commingling occurs when non-marital property is mixed with marital property to the point that it becomes difficult to distinguish between the two. For instance: using funds from a non-marital bank account to pay for joint expenses or purchase marital assets, or adding a spouse’s name to the title of a property acquired before the marriage. When commingling occurs, all or part of the non-marital property may be treated as marital property and subject to division.
Written Agreements: Protecting Non-Marital Property
Couples can protect their non-marital property by entering into a valid prenuptial or postnuptial agreement. Such agreements clearly outline what will be considered non-marital property and ensure it is treated as such during a divorce.
Key Takeaways About Non-Marital Property
- Non-marital property includes assets acquired before the marriage, inheritances, noninterspousal gifts, and income from non-marital assets (if not treated as marital).
- Florida law allows for non-marital property to remain with the original owner during a divorce.
- Non-marital property may transform into marital property through gifting or commingling.
- Written agreements, like prenuptial agreements, can help protect non-marital assets.
FAQs About Non-Marital Property
Non-marital property includes assets acquired before the marriage, noninterspousal gifts, inheritances, and income derived from non-marital assets (as long as it is not treated as marital property).
Commingling occurs when non-marital property is mixed with marital property, such as combining non-marital funds into a joint account. This can cause the non-marital property to be classified as marital property.
Yes, a valid prenuptial or postnuptial agreement can specify what property is considered non-marital, protecting it from division during a divorce.
Non-marital property is excluded from equitable distribution and remains the property of the original owner after the divorce is finalized.
To protect non-marital property, avoid commingling assets, create a prenuptial or postnuptial agreement, and consult an experienced family law attorney.
Conclusion
Understanding non-marital property is critical for protecting your assets during a divorce. Whether you’re dealing with commingled property, inherited assets, or prenuptial agreements, having a clear understanding of Florida law will help you safeguard what is rightfully yours.
Florida courts also recognize the concept of the “commingling” of property. When it can be shown that non-marital property has been commingled 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, call us at 561-709-6488 or request a strategy session to go over your current situation.
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