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Marital Property vs Separate Property


In some situations, property division is the most difficult part of a divorce, especially for couples who do not have a valid prenuptial agreement in place or who are unable to come to an out-of-court settlement. In these cases, it is often necessary for a court to step in and divide the property in an equitable manner. Determining which assets must be divided isn’t always easy, so if you are considering a divorce and have questions about what property you can keep and what must be divided between you and your spouse, you should consider speaking with an experienced property division attorney who can address your concerns.

Defining Marital Property  

In Florida, only assets that fall under the category of marital property must be divided equitably during a divorce. Generally, assets that either spouse acquired during the course of a marriage will be considered marital property. This includes both vested and non-vested benefits, insurance policies, retirement funds, pensions, and any right or asset accrued during the marriage.

However, there are exceptions to this rule. For example, even if one spouse inherits money or property during a marriage, those assets will be considered separate property in the event of a divorce. This means that the inheritance will remain the sole property of the original beneficiary and will not be subject to division. Similarly, gifts that have been specifically given to one party will remain the property of that individual even after divorce. The only exception to this rule is when the gift was given by one spouse to the other. Finally, all property owned prior to a marriage will be considered separate property and so will remain in the ownership of the original holder.

Examples of Separate Property 

Unless assets have been commingled during a marriage, those that were obtained before the wedding will be considered the sole property of the original owner. This includes:

  • Assets and debts that the couple has defined as separate property in a valid written agreement;
  • Income from separate property; and
  • Items exchanged for or purchased with separate property.

Even in these cases, separate property can be converted to marital property. For instance, if one spouse owned a business prior to the marriage, but during the marriage the company increased in value, those profits will be considered marital property and so must be divided equitably between the spouses. A party can also convert separate property to marital property during a marriage by changing title to joint ownership. In these cases, courts will generally presume that the spouse meant to make a gift of the property to the marriage itself.

Separate property can also be converted into marital property through a process known as commingling, in which separate assets are combined. Whether done intentionally or unintentionally, this commingling will result in the separate property being converted into marital property, which must then be divided in the event of divorce. For example, if one spouse creates a bank account prior to marriage, but after the wedding the other spouse begins making deposits, the account may become marital property. Similarly, a house owned by one party can become marital property if both parties contribute to the mortgage or other expenses during the marriage.

Contact a Fort Lauderdale Divorce Attorney for a Free Case Evaluation Today  

Divorce-related legal matters can be complicated and may require the assistance of an experienced property division attorney. If you are considering filing for divorce in Fort Lauderdale, please call Sandra Bonfiglio, P.A. at 954-945-7591 today to learn more about your legal options.



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