Distinguishing between separate and marital property in a divorce

Although Florida distributes marital property equitably between spouses in a divorce, some property is separate and not eligible for division.

Although Florida residents are forced to discuss a myriad of topics when dissolving their marriage, dividing property and assets may be one of the most difficult. Couples often amass a great deal of property, assets and belongings during the course of a marriage, and it can be hard to determine who gets what when parting ways. In most cases, the judge presiding over your case will equitably divide all marital assets and liabilities. However, not all property is considered marital."Separate" property or "non-marital" property is not subject to equitable division in a divorce case.

Types of Marital Property

Marital property generally includes any personal or real property that is acquired from the date of your marriage until the date you file for divorce. Some items are more complex and should not be overlooked. According to Forbes, the following are types of marital property that couples should not overlook when creating a settlement.

  • Collectible items, including wine, art, vehicles, rare coins or other valuable possessions
  • Vacation homes or timeshares
  • Memberships to exclusive clubs, such as country clubs and golf courses
  • Gifts that spouses have given to each other
  • Lottery winnings
  • Intellectual property, such as patents, royalties, trademarks and copyrights

In addition, frequent flyer miles, unused sick/vacation days, and even pets are also often overlooked when reaching a property settlement agreement.

Separate/Non-Marital Property

Separate or non-marital property remains in the possession and control of the original owner during a divorce. This may include property or assets that are owned by either spouse before the marriage or that a spouse acquired after the couple has filed for divorce. Gifts that were given to either party by a third person before, during, or after the marriage are also considered separate property.

Additionally, if one spouse inherits property and/or assets, they will be able to keep those as non-marital property. In some cases, however, separate property may become eligible for division in a divorce if the property or assets become mixed or commingled with marital property. For example, if one spouse deposits inherited money into a joint account with the other spouse, that money may be subject to division in a divorce. Similarly, separately owned property may become marital if the title to said property is changed to include both parties' names.

The importance of personalized representation

People who are going through a divorce in Florida may agree that the process can be emotional, and at times, overwhelming. Parties often turn to an experienced family law attorney to answer their questions and to guide them through the divorce process. While you may not know what you are entitled to in a divorce settlement, an experienced family law attorney can help to ensure your rights are protected.