Equal distribution of assets is never a simple process.
Few issues in a Florida divorce are of more importance to divorcing parties than how marital assets are distributed. For lengthier marriages, marital assets signify much of an individual's adult lifetime of hard work, and how these assets are distributed will have a lasting impact on how the parties go about their lives.
For these reasons, it is important to understand exactly what is — and is not — a marital asset according to Florida law.
Marital Assets in Florida
As an equitable distribution state, Florida sets forth clear guidelines that only marital assets (property) are subjected to equitable distribution. This is not to say that divorcing parties split marital assets 50/50. The court starts with the presumption of a 50/50 split and then proceeds to apply legal rules and statutes to make the division of property more fair. Dividing marital assets is the first step in the process of equitable distribution, which underscores the importance of knowing what is and is not a marital asset in a Florida divorce.
The 2016 Florida Statutes make clear what the state views as marital assets under Section 61.075. According to the statute, marital property includes:
Assets Acquired During the Marriage
Enhancement in Value and the Appreciation of Non-Marital Assets
Real and Personal Property Held As Tenants by the Entireties
Interspousal Gifts During the Course of Marriage
Certain Retirement Benefits
A few words should be said on how the state views assets acquired during the marriage and enhancement in value of non-marital assets, specifically. These concepts can be tricky for divorcing parties who are unfamiliar with the intricacies of Florida divorce laws.
For assets acquired during marriage, know that Florida is not concerned with whether the asset was acquired by one or both spouses. For instance, if a husband purchases a new vehicle with his money and puts only his name on the vehicle title, the car will still be treated as marital property. As such, keeping a marital asset solely in one party's name does not protect the asset from being included as marital property.
Regarding enhancement in value of non-marital property, this simply means that a non-marital asset that is improved upon can be treated as a marital asset. However, only the difference between the "improved upon" value of the asset and the asset's value prior to marriage may be considered a marital asset. For context, $50,000 of improvements to a non-marital asset property could be equitably distributed, but the home itself would remain a non-marital asset if a party purchased it prior to the marriage.
Finally, there are certain assets which are not included as marital assets when it comes time to equitably distribute the property. These non-marital assets include:
Assets Acquired Before the Marriage
Income Earned From Non-Marital Assets (Such As Rental Properties Owned Prior to the Marriage)
Property Acquired Via Inheritance or by a Noninterspousal Gift
And, finally, divorcing couples can choose properties and marital assets that should be excluded from equitable distribution through legally valid pre and postnuptial agreements. Even if the assets would have been considered marital assets, valid legal agreements stating they are not marital assets will be enforceable in Florida courts.
If you have questions regarding marital assets, or are unaware as to the terms and conditions in, talk to, and retain, a family law attorney who can help. Contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at firstname.lastname@example.org