Florida law explicitly states that marital property is comprised of those “[a]ssets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.” § 61.075(6)(a), Florida Statutes. Typically this means that identifying an asset or liability as “marital” or “nonmarital” will in part come down to determining when the asset was acquired.
Marital assets are subject to distribution, while nonmarital assets are not subject to distribution. Assets or liabilities that are incurred while the divorce proceeding is pending, but before the divorce is finalized, are typically considered “non marital” assets.
In addition to property acquired during the marriage, martial property also includes, “interspousal gifts”, which could come in the form of one spouse gifting the other spouse his or her nonmarital property. Proving that certain property was an “interspousal gift” and therefore martial property requires proof. In 2017 the Florida Supreme Court stated that an interspousal gift is established by showing: 1) donative intent; 2) delivery or possession of the gift, and 3) surrender of dominion and control of the gift. Hooker v. Hooker, 220 So.3d 397 (Fla. 2017).
For example, imagine that Husband enters the marriage with two (2) paid for cars. Wife enters the marriage with one (1) car. During the marriage Wife’s car breaks down. Instead of Wife buying another car, Husband decides to gift his second car to Wife permanently. There is a mutual understanding between the two that this car will be hers. For several years wife has exclusive possession of the car, meaning she drives it on a daily basis exclusively (husband never drives it). Here, Wife would have a strong argument that the car husband gifted to her is now marital property, which is subject to distribution upon divorce.
In Florida, if nonmarital property (i.e. property acquired prior to the marriage) increases in value throughout the marriage, then that value increase might be considered marital property, which again is subject to equitable distribution. In fact, Florida law states that, “[t]he enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both” is marital property. See § 61.075, (6)(a)1.b., Florida Statutes.
For example, imagine that Wife enters the marriage with a condo that is in major disrepair. Wife acquired the condo with a plan to fix it up and rent it. Once married, Wife saves money from her paycheck each month and spends it on condo repairs. During the course of the marriage the condo is transformed and has increased in value substantially, mainly due to the repairs. Wife eventually files for a divorce and claims that Husband is not entitled to any portion of her condo. In this example, since the increase in value was due to the repairs, which took place during the marriage, Husband has a stronger argument that he is entitled to a portion of the condo.
When going through a divorce it is imperative to determine what property is subject to distribution between both parties and what property is not subject to distribution. Florida law may entitle you to shield certain property from your spouse. If you have questions regarding divorce and the distribution of marital property contact us today by calling 954-990-9307 to get your questions answered.
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