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Classifying marital and separate property during divorce

| Feb 17, 2021 | Property Division |

As you navigate your divorce, you may find that dividing up your assets is one of the more challenging parts of the process. Many people bring a significant number of assets into the marriage and end up accumulating even more assets as a couple during the marriage. When the marriage ends, however, only marital assets will go through the property division process.

Marital vs. separate property

A majority of states, including Florida, follow the laws of equitable distribution, where the court can decide a fair and equitable way to divide up the couple’s marital assets and is not obligated to split everything 50-50. To begin the process, the court must first determine which assets should be classified as marital and which should be classified as separate.

Separate property

Generally, separate property refers to assets belonging to only one spouse. Separate property often includes:

  • Property acquired by one spouse prior to marriage (e.g. personal vehicle)
  • Gifts acquired by one spouse before or during the marriage
  • Inheritances given to one spouse before or during the marriage
  • Debts of one spouse designated as separate property in a prenup or other legal agreement
  • Property acquired by one spouse during the marriage that was not purchased with marital funds, not used by the other spouse, and did not benefit the marriage

Marital property

Marital property, on the other hand, is generally property purchased during the course of the marriage. Common marital assets include:

  • Family home
  • Home furnishings
  • Family vehicles
  • Retirement accounts
  • Joint bank accounts
  • Marital businesses

In many cases, an asset is brought into the marriage by one spouse (separate property), but eventually becomes marital property when commingled funds are used to make payments toward the asset. For example, a vehicle previously owned by just one spouse can become marital property when the couple’s shared income is used to make payments on the vehicle.

A divorce attorney in Florida can help you divide your assets and ensure that your separate property remains solely in your possession after the divorce is finalized.