When going through the divorce process, it is very important to know how marriage and property ownership work in Florida, so you fully understand who owns what. This in turn is important because during a divorce, you and your spouse both have a right to a share of marital property, but not to non-marital property that belongs to the other spouse. This is important whether you are just going into a marriage, negotiating a prenuptial or marital agreement, contemplating legal separation or divorcing.
The information in this article pertains to Florida residents and likely to residents of separate property (i.e. not community property states) but you should always consult a qualified attorney in your own state. Florida is a separate property –equitable distribution state. You live in a separate property – equitable distribution state if you do NOT live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin. In Alaska, spouses have the opportunity to execute a marital agreement, making specific assets community property.
If you divorce, the judge has discretion and can award marital property to whichever spouse he or she thinks should receive it. Non-marital property stays with its owner, even in divorce.
Having an asset in one spouse’s name alone doesn’t make that asset separate property. The test used by the courts is whether ownership has arisen from the proceeds of the marriage. Basically, if an asset was purchased during a marriage and paid for out of a spouse’s salary, it’s marital property.
In Florida, examples of marital property would be:
- A bank or investment account that you and your spouse deposit your pay checks into.
- A house you bought and made payments on during your marriage.
- A car you purchased during your marriage, no matter whose name the car is titled.
- Your retirement account funded during your marriage.
In Florida, examples of separate property would be:
- A bank account that you opened and contributed to before you were married; no contributions were made during your marriage using marital funds.
- An inheritance that you received either before or during your marriage that has always been kept separate from marital property and no funds of your own were contributed during marriage.
In Florida, examples of how separate property can become marital property, aka “comingling”:
- You take money out of that bank account you had before you were married and you jointly purchase a home with your spouse, who also contributes funds to purchase the home.
- You put your inheritance into a joint account with your spouse.
Where to Get Help Understanding Marriage and Property Ownership: Who Owns What?
If you or a loved one is contemplating marriage and a prenuptial agreement or is going through a separation or divorce, or expect to go through a separation or divorce, consult with a qualified Florida divorce attorney.
We focus our practice on divorce and family law and you can reach us at (656) 219-3970 or by email at rechel@tampabaylawyers.com. Our office is located in Tampa, Florida; your next step is to contact our office for a consultation. We look forward to hearing from you.
You can also watch videos from Theodore Rechel in the video FAQ section.
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