Separate (Nonmarital) Property in a Florida Divorce

Florida law calls separate property “nonmarital” property. Under Section 61.075, Florida Statutes, it generally includes what you owned before the marriage, inheritances, and gifts from someone other than your spouse, and the judge sets it apart to you instead of dividing it. Marital money or effort, commingling, and joint titling can make part or all of it marital.

In Florida, “Separate Property” Means Nonmarital Property

“Separate property” is a term from community property states. Florida law uses a different word: nonmarital. Florida is not a community property state. Section 61.075, Florida Statutes, governs equitable distribution, and it states plainly that it does not establish community property in Florida.

Property division starts by sorting each asset and debt into one of two groups. The court sets apart each spouse’s nonmarital assets and liabilities to that spouse, then divides the marital ones, starting from the premise of an equal division. For a fuller comparison, see is Florida a community property state.

What Counts as Nonmarital Property

Section 61.075(6)(b) lists the categories. The main ones are:

• Assets and debts either spouse had before the marriage, and assets acquired in exchange for them
• Inheritances and gifts from someone other than your spouse, received separately, plus assets acquired in exchange for them
• Income produced by a nonmarital asset during the marriage, unless the spouses treated, used, or relied on that income as a marital asset
• Assets and debts excluded from the marital estate by a valid written agreement, such as a prenuptial or postnuptial agreement
• Real estate received by inheritance or by gift from a third party, as long as title was never transferred to both spouses as tenants by the entireties

Gifts between spouses work differently. An interspousal gift made during the marriage is a marital asset, and under the current statute a spouse cannot make a gift of real property to the other spouse without a writing that complies with Section 689.01, Florida Statutes.

Proving an Asset Is Nonmarital

Section 61.075(8) presumes that anything either spouse acquired after the wedding is marital unless it is shown to be nonmarital. In practice, the spouse who says an asset is separate needs records to prove it. Florida’s mandatory disclosure rule, Rule 12.285 of the Family Law Rules of Procedure, requires that spouse to produce the supporting documents, dating back to when the asset was acquired or, for premarital assets, to the date of the marriage.

How Nonmarital Property Can Become Marital

Growth from marital money or effort

Under Section 61.075(6)(a)1.b, when a nonmarital asset increases in value because of either spouse’s work during the marriage, or because marital funds were spent on it, that enhancement is marital. Common examples are a premarital business that grew through work during the marriage and a premarital condo remodeled with joint funds.

Mortgage paid with marital funds

If marital funds paid down the mortgage on a home one spouse owned before the marriage, Section 61.075(6)(a)1.c treats that principal paydown as marital, along with a share of the home’s passive appreciation calculated with a formula set out in the statute. For more on the family home, see who gets the house in a Florida divorce.

Commingling

Depositing an inheritance into a joint account, or mixing premarital savings with paychecks earned during the marriage, can make the nonmarital part impossible to trace. If it cannot be traced, the presumption in Section 61.075(8) may leave it classified as marital.

Joint titling

Real property the spouses hold as tenants by the entireties is presumed marital, even if one spouse owned it before the wedding. Section 61.075(6)(a) puts the burden of proof on the spouse claiming otherwise, and the gift presumption can be overcome only by clear and convincing evidence.

Ways to Protect Nonmarital Property

• A premarital agreement. Under Section 61.079, Florida Statutes, future spouses can agree on their rights in the property of either or both of them, whenever and wherever acquired. The agreement must be in writing, signed by both parties, and takes effect upon marriage. Learn more about prenuptial agreements in Miami.
• A postnuptial agreement. If you are already married, Section 61.075(6)(b)4 recognizes assets excluded from the marital estate by a valid written agreement.
• Separate accounts. Keep an inheritance or premarital savings in an account in your name alone, and do not deposit marital earnings into it.
• A paper trail. Save statements from around the date of the marriage, closing documents, gift letters, and estate or probate records.
• Caution before retitling. Talk to a lawyer before adding your spouse to a deed or account that holds nonmarital property.

An agreement also has to be made the right way. Under Section 61.079(7), a premarital agreement is not enforceable if the spouse challenging it proves it was not signed voluntarily, or was the product of fraud, duress, coercion, or overreaching. An agreement that was unconscionable at signing can also fail if the challenging spouse lacked fair and reasonable financial disclosure, did not waive it in writing, and did not have, or reasonably could not have had, adequate knowledge of the other’s finances. For practical guidance, see should I get a prenup in Florida.

Talk With a Miami Divorce Attorney

Classification disputes turn on dates, documents, and how money moved during the marriage. Attorney Arturo Alfonso helps clients in Miami-Dade County trace nonmarital assets, respond to claims against property owned before the marriage, and prepare premarital agreements. Learn more about the firm’s family law services.

Call (305) 266-9584 or contact the firm to schedule a free consultation. Se habla español.