What’s The Difference Between Separate And Marital Property During A Florida Divorce?

If you’re going through a divorce presently, then it’s important to understand some concepts under the law that will have a profound impact on your case. One of those concepts is separate versus marital property. Once your marriage begins, you begin acquiring assets to the marital estate. It is these assets that are subject to equitable distribution by the court. Separate property wholly belongs to one or the other spouse and is not property of the marriage. Therefore, it cannot be equitably distributed. In this article, the Orlando divorce lawyers at Greater Orlando Family Law will discuss the difference between separate and marital property during a divorce.

What is marital property? 

Generally speaking, marital property includes any property that was acquired during the marriage. As a general rule, you can say, “If the property was acquired during the marriage, then it belongs to the marital estate.” There are some exceptions to this rule such as inherited property or property that was protected by a prenuptial or postnuptial agreement.

Many people ask whether their retirement accounts are considered marital property. They usually don’t like the answer. If a retirement account accrued value during the marriage, then the accrued value is considered marital property. The spouse would retain ownership of the value of the retirement account prior to marrying. In other words, part of the retirement account would be considered separate property, while the accrued value during the marriage would be considered property of the marital estate.

What is separate property? 

Generally speaking, all property that was acquired during or after the date you filed for divorce is considered separate property. In addition, certain other properties can be considered separate property. Property that was acquired either as a gift or through inheritance is considered property of the individual spouse and not the marital estate. Such property would not be subject to equitable distribution.

Can separate property become marital property? 

Yes. Let’s say you have a separate bank account. You commingle funds from the marriage with your separate bank account. The bank account is now considered wholly property of the marital estate. So, if you want to protect your separate property, you have to be careful about not commingling funds from one account with the other. This could leave that account susceptible to equitable distribution.

Can marital property become separate property? 

You can draft a pre- or post-nuptial agreement that protects certain valuable property from equitable distribution. Let’s say that you run a business. This business is important to you as it represents your livelihood. If the business was started during the marriage, then it’s technically property of the marital estate. If you want to protect the business from equitable distribution, you would need a pre- or post-nuptial agreement to do so. You can stipulate in your prenup that the business remains your sole property.

Talk to an Orlando Divorce Lawyer Today 

Greater Orlando Family Law represents the interests of Florida residents who are pursuing a divorce, drafting a prenuptial agreement, or otherwise have questions concerning family law. Call our Orlando family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.