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What to expect from the property division process in Florida - II

In a previous post, we discussed the unfortunate reality of how many soon-to-be divorced spouses experience unnecessary anxiety about the division of property thanks to misinformation provided by everything from television to well-meaning friends and family.

In order to help rectify this situation, we began examining how the property division process actually works, focusing on how Florida is an equitable division state and the factors considered by the state courts when dividing property. We'll continue these efforts in today's post, exploring the difference between martial property and separate property, and why it matters.

Marital property

In the absence of a prenuptial agreement, marital property is essentially all assets and debts secured during the marriage regardless of whether they are titled jointly or separately.

While this means things like real estate, bank accounts, cars and furnishings, it also includes non-vested and vested funds/rights accrued by either spouse, such as retirement accounts, pensions, profit-sharing, insurance and deferred compensation.

As far as debt is concerned, it's important to understand that even if the debt is titled in the name of only one spouse -- perhaps a credit card account in their name only -- there is still joint responsibility for any debt incurred.

Separate property

Separate property is any property owned by one of the spouses prior to the marriage or that is designated as such in a prenuptial agreement. In addition, property is also considered separate if it was acquired via an inheritance or gift (other than the spouse) during the marriage, or if it was purchased or exchanged using different separate property.

Furthermore, any income derived from separate property (i.e., rental property owned before the marriage) is treated as separate property.

As for why the distinction matters, the simple answer is that courts divide only marital property in a divorce.

Some important final points to keep in mind about property division include:  

  • Changing the title of an asset from being owned separately to jointly will likely convert it to marital property
  • Increases in the value of separate property otherwise attributable to marital funds and/or the efforts of either spouse are considered marital property
  • Mixing separate property with marital property -- called comingling -- will likely result in the entirety being declared marital property

Consider speaking with a skilled legal professional if you have questions relating to property division or concerns about other divorce-related issues.

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