How to Protect Your Separate Property During Marriage
When Florida couples divorce they are required to divide their marital assets in a fair and reasonable manner, but are permitted to retain their separate assets. It is also possible, however, for assets that initially qualified as separate property to become marital assets during the course of a marriage, in which case, the original owner would have to split the asset with his or her soon-to-be former spouse. For help determining which of your assets must be divided upon divorce, please contact an experienced Fort Lauderdale property division lawyer who can advise you.
What is Separate Property?
Separate property is made up of assets that were acquired by a person before he or she entered into marriage. In most cases, these assets will remain in the possession of the original owner, even if the parties later dissolve their marriage. There are a few other types of assets, however, that also qualify as separate property even when acquired during marriage. Gifts given by a non-spouse to only one of the parties during marriage, for example, are also considered to be separate property, as are inheritances left only to one spouse.
Commingling Separate and Marital Property
There are some circumstances in which assets that would normally remain a person’s separate property end up being subject to division upon divorce. For example, the easiest way to make an otherwise separate assets subject to division, is to commingle that property with marital assets. If, for instance, a person received a lump-sum inheritance from a loved one and he or she then deposited those funds into a shared marital bank account, a family law court could view those funds as marital property. Even giving a spouse access to an account that holds separate assets or adding him or her to the account, could give rise to a claim of commingling.
When determining whether separate property has become a marital asset, courts assess a number of factors, including whether:
- The funds are traceable to the non-marital point of origin; or
- The funds have become irretrievably commingled with a marital asset to such a degree that the separate character of the asset has been dissolved.
One spouse’s separate property can also lose its status as a separate asset if a couple uses it to cover the cost of maintaining marital property.
Substantially Contributing to the Maintenance of Other Property
Using a portion of non-marital assets for a marital purpose, such as paying household expenses, will also cause that separate property to become a marital asset. Any funds remaining in the separate account, however, will not convert into marital property. In fact, if one spouse substantially contributes to the maintenance of a different separate asset owned by the other spouse, he or she could end up with a share of that property upon divorce. While this rule typically applies to physical assets, like a residence or vehicle, financial assets could become vulnerable to division as long as the other spouse made an effort to improve or maintain that property.
Contact an Experienced Property Division Lawyer
If you have questions or concerns about dividing your own assets upon divorce, please call experienced property division attorney Sandra Bonfiglio, P.A. at 954-945-7591 today.