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Dividing Property in a Florida Ladivorce

Posted by attorney Heather Quick

In a Florida divorce, is there such thing as non-marital property? Florida is a separate property state for the purposes of a divorce, meaning it is not a community property state like California. Therefore, when you enter into a marriage, any property you own or assets in your name are non-marital. In young couples who stay married for many years, most pre-marital assets and property are generally combined with marital property or sold and invested into a marital account. When that happens, your pre-marital house that was sold and used as a down payment for your marital home will have lost its “non-marital" character and determined to be a gift to your spouse.

The issue of non-marital property comes up most frequently in a Florida divorce of an older couple, or a couple who entered the marriage with substantial assets. I see this in a second marriage and each person has a 401(k), a home and savings. Generally, no one signs a pre-nuptial agreement, so the determination of marital property is important. In this type of divorce, if there is a dispute over the character of marital and non marital property, a detailed analysis of the assets and liabilities must be conducted. The factors to be evaluated include a look at whether or not marital money was used to support the other property and to what extend. In retirement plans, how much has the asset grown over the marriage, what where the contributions made during the marriage. What if the wife kept her non-marital home and rented it out and the husband sold his house and used the proceeds to purchase a new marital home for them to share? Would the law recognize the husband’s contribution to the home and give him credit or would it be a 50/50 split? Most likely it would be a 50/50 split and the wife’s non-marital property would remain her own and the husband’s non-marital funds used for the marital home would be deemed a gift. When looking at filing for divorce in Florida, it is important to bring up all of these issues with a Florida Divorce lawyer in the beginning, so that your goals are clear and your expectations are realistic.

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