Your Separate Property and Divorce

Monday, September 10, 2018

Your Separate Property and Divorce 

Florida law requires that when a couple is divorcing their assets and obligations which were acquired and incurred during the marriage be divided equitably. While this may seem to be a relatively straightforward process when former partners also have separate property or property that once belonged only to them, the matter of what can be divided during a divorce can become confusing. Here is what you need to know about your separate property and divorce:

What is Separate Property?

Non-marital Property Before Marriage

  • Generally, separate or “non-marital” property is going to be any assets which you owned prior to the marriage. For example, if you owned a home or vehicle coming into the marriage this would be non-marital property. But, if you were to jointly title these assets, they could become marital property.

Inheritance or Gift

  • If you receive an inheritance during your marriage it is your separate non-marital property. The same goes for if you were to receive a gift from someone other than your spouse. A gift between spouses, however, is considered marital property. Were you to combine your inheritance or gift with marital accounts, however, they would be co-mingled resulting in a change from non-marital to marital property.

Income from Non-Marital Property

  • If you own a non-marital asset which generates income, the profit from this asset is your separate property. However, there can be considerations regarding how much of the marital estate has been used to support the asset. Further, just as with your other non-marital monies, if the money earned from the asset were to be combined with your marital funds, this can change its character from non-marital income to marital. Another factor which could be taken into consideration is the increase in the asset’s value during the marriage and how much of that increase was attributable to marital support and contribution.

Property by Agreement

  • Prior to or during marriage parties can enter into agreements as to how certain assets will be treated in the event of divorce. Non-marital assets can be included in these kinds of contracts. For instance, a partner may state that the house they owned before marriage, a non-marital asset, be considered marital property in the event the couple divorces.

Keeping Non-Marital Property

As indicated above, there are definitely certain actions which can change your non-marital property to marital property. To avoid this occurrence, you can:

  • Sign a prenuptial or post-nuptial agreement which specifically outlines how your property will be characterized in the event of divorce.
  • Avoid co-mingling funds from separate property income, gifts, or inheritance with marital accounts. This means keeping the money in a separate account and never allowing it to be combined with your marital funds.
  • Keep records regarding separate assets and their income and expenses. The more you can show separation and support with separate funds, the more likely it will be that the property will remain your non-marital asset.

Protecting your separate non-marital assets during the equitable distribution process can be complicated. In order to ensure that your property is treated fairly, it is important that you consult with an experienced family law attorney. At the Draper Law Firm, our attorneys have the experience your need and can provide you with guidance about your separate and marital property. If you have a divorce case in Florida, contact us to schedule a free consultation. We invite you to learn more about our firm here.

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