In a divorce, couples will need to divide marital property or assets that they gained as a married couple. But what happened to property that isn’t part of the marital property? Known as separate property or non-marital property, these assets belong to the spouse that owned them before the marriage, and are not divided in the divorce. Separate property can become marital property through several ways, but typically, it will remain in the sole ownership of the spouse who originally owned it.
Some examples of separate property includes:
- Property owned before marriage, so long the other spouse isn’t given co-ownership
- Property acquired by inheritance or non-spousal gift
- Profits from the ownership of separate property
- Property bought with non-marital funds
- Debts that were acquired before the marriage
Separate property is under the control of the spouse who owns it, and can be sold or invested as they see fit. Non-marital property can be converted to marital property, and marital property may be derived from shared property.
Non-Marital Property Becoming Marital Property
It is possible for separate property to become marital property, and sometimes this can happen unintentionally. This is known as “comingling.” If a spouse owns a house before the marriage and adds their partner to the deed, the house is now considered marital property, and will be divided in the divorce. Similarly, if a spouse is given or inherits money, it is considered separate property until it is deposited into a joint account. Separate funds are considered marital property after they are added to a shared account, and they will be figured into the divorce settlement as well.
Appreciation of Separate Property
It is possible for separate property to also be involved in the division of marital property for several reasons. If one spouse owns a home or other real estate, but both spouses put considerable work and shared funds into upgrading and increasing the value of the house, the increase in value is considered marital property. Similarly, if one has a business and the other spouse contribute to the business, this effort or investment can be counted as marital property.
Some couples take time before their marriage to draft a document outlining the division of property, even if some would be considered marital property. These agreements, known as prenuptial agreements, allow couples to decide the division of much of their liability and assets before they are married. In the case of the divorce, it is likely that the agreement will be honored by the judge, provided the agreement is legally binding and meets the requirements set forth by Florida law. Should a divorce occur, division will only be decided on any assets not in the prenuptial agreement.
Couples may incur liabilities or debts together, such as a home mortgage or debt for a shared credit card. These debts are considered marital property, and will be divided during the divorce. Often, spouses will enter the marriage with debts or loans of their own. These will remain the responsibility of the spouse that incurred them.
How Can a Property Division Attorney Help?
Final property decisions are hard to reverse, so it is important that your divorce settlement is satisfying to you. An experienced property division attorney can help you ensure that your settlement is fair and meets your needs. When meeting with your lawyer, there are several steps you should take to help them understand your finances and allow them to help.
First, disclose all of your assets and property. Hiding assets won’t work out in your favor, so it is best to be upfront with what you own. Your attorney can only protect assets they are aware of, and deceptive spouses frequently are punished by the court if they are found to have hidden property.
Next, explain how the property was acquired and used. This can help your attorney determine what is separate property and what is not. Separate property, such as a business, may use marital funds to grow. The difference between the original business value and the appreciated value needs to be accounted for in marital property.
Finally, discuss the importance of certain assets. You may have a vacation home with precious memories attached, or you may want to get rid of the house that was your spouse’s dream house. Let your attorney know what properties or assets are important to you, so they know on which assets to focus their attention.
If you’re facing divorce, don’t take on the process alone. Our Altamonte Springs divorce attorney can offer you compassionate legal advice and meticulous preparation for your divorce. With over 25 years of experience, theLaw Office of Russell S. Hershkowitz, L.L.C. can help with even the most complex cases. Contact our firm today at (407) 753-4111 to schedule a free case evaluation.