Outside of the child custody determinations one of the most heavily litigated issues in a dissolution of marriage (divorce) case is the division of the marital property. This includes both marital assets as well as liabilities(debt). Florida acts under the premise that marital property should be divided equitably and has adopted the term “equitable distribution”. However, a party may claim a special equity in marital property. For the purposes of today’s blog however the focus will remain on discussing the difference between marital and nonmarital assets
– Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
– The enhancement in value and appreciation of nonmarital assets resulting either 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.
– Interspousal gifts during the marriage.
– All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
– All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.
– All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.
“Nonmarital assets” are defined, pursuant to Florida Statute 61.075 as:
– Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
– Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
– All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
– Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
– Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature. In determining an award of attorney’s fees and costs pursuant to s. 61.16, the court may consider forgery or an unauthorized signature by a party and may make a separate award for attorney’s fees and costs occasioned by the forgery or unauthorized signature. This subparagraph does not apply to any forged or unauthorized signature that was subsequently ratified by the other spouse.
If a party makes a claim to the contrary of the normal definitions of marital assets, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.
The cutoff date for determining marital assets is the date the parties enter into a valid separation agreement (or any other date expressly defined in the agreement), or the date the petition for dissolution of marriage is filed. The date for determining the value of the assets is the date or dates the judge determines to be fair and just. The judge may also assign different dates for different assets.
As you can see several issues may arise when seeking to divide marital assets or making a claim that certain property is nonmarital. If you are seeking a divorce and have marital or nonmarital assets you may want to consider consulting a Destin Divorce Lawyer about your case.
Jeremy S. Keich is a Destin Divorce Attorney representing clients in matters involving divorce, child custody, child support and paternity issues in Okaloosa and Walton County. None of the information contained in this blog should be construed as legal advice nor shall the communication be construed as forming an attorney-client relationship. For more information about Jeremy S. Keich or to contact him about a Walton County or Okaloosa County Family Law Matter please visit www.keichlaw.com or call (850) 460-2989.