When you are facing divorce, your primary concerns are usually your children and your assets. Many people come to us with questions regarding the property that they brought into the marriage and whether it is still their property. It is important to understand that assets that were once your separate property can become marital property when they are commingled with marital assets. For example, when you deposit money into a joint bank account that holds marital funds, the money is commingled and becomes the property of both spouses.
Florida Statutes 61.075 defines “marital assets and liabilities” as,
- Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.
- The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.
- Interspousal gifts during the marriage.
- All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
Florida law provides that the burden of proof is on the party that is seeking to have the assets determined to be non-marital property. Thus, if you own separate property and you want it to stay that way, it is important for you to take certain steps to ensure that it is no commingled during the marriage.
Below are a few ways you can ensure that your separate property is not converted into joint or marital property:
- Before you are married, sign a pre-nuptial agreement with your future spouse. This type of contract will set forth how your assets will be divided upon your death or if you divorce. If you are already married, you can enter into a post-nuptial agreement, which can also protect your separate property.
- Make sure you keep separate assets separate. This typically means that you maintain separate funds in a separate account and that you do not deposit martial funds into the account and you do not pay marital debts out of the account.
- Maintain meticulous records establishing the separate character of the assets. You will want to be able to show the value of the asset at the time of marriage. Having detailed records may also allow you to trace the separate funds if some of them should become commingled.