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Defining Separate Property for Divorce Purposes


Florida requires divorcing couples to divide their marital assets in an equitable manner. This same requirement, however, does not apply to separate property, which includes assets acquired by the parties prior to their marriage. These assets, unlike marital property, will usually remain in the hands of the original owner, unless the court finds that they were commingled with the couple’s marital property to such a degree that they have become essentially indistinguishable.

Because separate property does not have to be divided, ensuring that your own separate assets are properly identified is crucial to reaching a fair property settlement agreement with your spouse. For help determining which of your assets will remain under your control after divorce, please contact an experienced property division lawyer who can assist you.

What are Marital Assets? 

As mentioned previously, marital assets include any property that was obtained by either spouse after a marriage took place. This is true regardless of who actually purchased or acquired the property, or whose name is on the title or deed. As long as the asset was obtained after the marriage occurred, the property will most likely be considered marital in nature and so must be divided equitably upon divorce.

Which Assets Qualify as Separate Property? 

Separate property, on the other hand, is made up of assets that were acquired by either spouse before the marriage took place. These assets, unlike their marital property counterparts will remain in the sole possession of the original owner, so determining when an asset was obtained is critical to the property division process. There are, however, also a few exceptions to this general rule, including:

  • Assets that were obtained during a marriage, but were given or left as a bequest by a non-spouse to only one of the parties;
  • Any income derived from a non-marital asset during a marriage unless the income was used, treated, or relied upon by the parties as though it were marital property;
  • Any assets excluded from marital property by valid written agreement, such as a prenuptial or postnuptial agreement; and
  • A personal injury settlement for pain and suffering awarded to one spouse.

Keeping non-marital assets that were obtained during a marriage separate from other shared assets is crucial because once a person deposits those funds into a joint account they become marital property and become fair game for division upon divorce.

Debts and Liabilities 

These same rules apply to any debts or liabilities incurred by the parties, either prior to, or during their marriage. For instance, a debt taken out by one spouse prior to marriage will usually be considered the sole responsibility of that spouse, unless the funds were used for marital purposes, such as home maintenance.

Schedule a Case Evaluation Today 

The property division process can leave divorcing parties with a lot of questions. For help with these concerns, please contact dedicated Fort Lauderdale property division lawyer Sandra Bonfiglio, P.A. at 954-945-7591 today. You can also reach a member of our legal team by completing one of our brief online contact forms.

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