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Marital versus nonmarital assets in a Florida divorce

Florida courts sort every asset and every debt into two piles before dividing anything, and most of the real argument is about which pile a thing belongs in.

Before a Florida court divides anything in a divorce, it has to decide what there is to divide. That step is called classification, and it comes first. Every asset and every debt gets sorted into one of two piles, marital or nonmarital. Only the marital pile is subject to division. The nonmarital pile stays with the spouse it belongs to.

The short answer is this. Property acquired during the marriage is generally marital, whatever name is on the title, the deed, or the account statement. Property you brought into the marriage, inherited, or received as a gift from someone other than your spouse is generally nonmarital. Almost all of the difficulty in a real case comes from what happened to that nonmarital property after the wedding.

The two dates that set the boundaries

Classification runs between two dates. The first is the date of the marriage. The second, under section 61.075(7) of the Florida Statutes, is the earliest of the date the spouses signed a valid separation agreement or the date the petition for dissolution was filed.

What falls between those dates is presumed marital. What falls outside them generally is not. That boundary matters more than people expect. A bonus deposited three weeks before the petition is filed sits inside the marital estate. The same bonus deposited three weeks after it generally does not.

Valuation is a separate question with its own timing, and a judge may value different assets as of different dates.

What Florida counts as marital

Section 61.075(6)(a) lists the categories. In practice they cover:

Whose name appears on an account does not settle the question. A brokerage account opened during the marriage in one spouse's name alone is still marital property, because it was acquired during the marriage.

What stays nonmarital

Section 61.075(6)(b) sets out the other side:

Who has to prove what

Section 61.075(8) sets a presumption: everything either spouse acquired after the wedding date is presumed marital. The presumption can be overcome, but the spouse claiming an asset is nonmarital is the one who has to overcome it.

Proof here is documentary. Account statements, closing documents, the probate file, deeds, transfer records: the paper trail that shows where money came from and where it went. Lawyers call that tracing. Recollection is not tracing, and a spouse who remembers the inheritance clearly but cannot show where it landed is in a weak position on that asset.

Records thin out over a long marriage. Banks purge old statements. This is one of the most common reasons a genuinely nonmarital asset ends up treated as marital, and it is a good argument for gathering documents early rather than at the end. Florida's mandatory disclosure requirement will call for an exchange of financial records from both spouses in any event.

Commingling, and how a separate asset stops being separate

Commingling is what happens when nonmarital money is mixed with marital money until the two can no longer be told apart.

Consider an inheritance of sixty thousand dollars deposited into the joint household account. Over the next eight years that account takes in both salaries, pays the mortgage, funds two vacations, and covers a roof replacement. The balance rises and falls hundreds of times. At some point the inherited dollars stop being identifiable as inherited dollars. Florida courts have treated commingled funds as marital once the nonmarital portion can no longer be traced. Depositing separate funds into a jointly titled account also raises a second question, which is whether the depositing spouse intended to make a gift of half of it.

Commingling is not automatic and it is not always fatal. An inheritance parked in a separate account in one spouse's name, never drawn on for household expenses, is usually straightforward to trace years later. What causes the trouble is ordinary convenience rather than anything deceptive.

Enhancement: when a nonmarital asset carries a marital share

Even an asset that was kept carefully separate can carry a marital component. The statute treats the enhancement in value and appreciation of a nonmarital asset as marital where it resulted from the efforts of either spouse during the marriage, or from spending marital funds on the asset.

Three familiar shapes:

Many assets therefore land on both sides of the line at once, part nonmarital and part marital, in proportions that have to be established with records and, in some cases, with expert valuation.

The 2024 change to interspousal gifts of real property

One rule changed recently, and it catches people who married long before it. Gifts between spouses during the marriage are marital. For real property, Florida law now requires that an interspousal gift be made in a writing that satisfies section 689.01, the statute governing conveyances of land. That requirement took effect July 1, 2024. Adding a spouse's name to a deed, standing alone, no longer carries the meaning it was once assumed to carry.

The same 2024 legislation also addressed homestead property. A spouse who joins in a deed conveying homestead real property to a third party does not, by that act alone, convert the property or the proceeds of its sale into a marital asset.

If a deed in your marriage was signed before July 2024, raise it specifically. How the current rule applies to an older transfer is a question to put to your attorney with the document in front of you.

What to do with this

Much of a property case is decided at classification, quietly, long before anyone argues about percentages. Two useful steps you can take on your own:

  1. Write out every asset and every debt, and beside each one note when it was acquired and where it came from.
  2. Mark the ones with a nonmarital origin, then go looking for the documents that show that origin and show what happened to the asset afterward.

How the marital pile is then divided between the spouses is a separate question with its own set of factors, and our page on property division covers that side of it.

If your situation involves an inheritance deposited years ago, a house you owned before the wedding, a business you built, or a retirement account that predates the marriage, the useful next step is a conversation about your actual records. Tampa cases are heard in the Family Law Division of the Hillsborough County Circuit Court at the George Edgecomb Courthouse on East Twiggs Street. You can reach our office through our contact page.

This article is general information about Florida law and is not legal advice. Reading it does not create an attorney client relationship. Family law outcomes turn on the facts of each case. For guidance about your own situation, speak with an attorney.

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