Non-marital assets and liabilities are defined in Florida Family Law as 1) assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2) Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets; 3) All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset; 4) assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets. See Fla. Stat. § 61.075(6)(b)(1-4).
In a dissolution of marriage case, the court must set apart each spouse’s non-marital assets and liabilities and marital assets and liabilities and must begin with the premise that the distribution should be equal absent justification for unequal distribution pursuant to factors under the statute. See Fla. Stat. § 61.075(1). Assets acquired before marriage are not marital assets and remain the property of the owner spouse in the absence of evidence of a gift or conveyance of the assets to the owner’s spouse. See Moss v. Moss, 829 So.2d 302 (Fla. 5th DCA 2002); see also Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Essentially, the court in Horton v. Horton, 433 So.2d 1386 (Fla. 5th DCA 1983) stated:
“When a marriage partner brings his or her own property to the marriage and does not make a transfer of the asset or any portion of it to the spouse then that asset remains separate property. Upon dissolution of the marriage the asset is still owned by the original owner. Unless the asset, or a portion of it, is awarded as lump sum alimony then the court must recognize the proper ownership of the property and not take it from the owner.”
Non-marital property may become marital property under certain circumstances such as placing record ownership in both names or commingling financial assets with marital assets. Sometimes, when marital funds or labor are used to improve non-marital property, the increase in value can be marital property. Pension or retirement funds, whether they are vested or not, can be marital property to the extent they accrue during the marriage. The same can be said for assets held by nonparty corporations, limited liability companies, and partnerships because assets owned by these entities are third-party property that cannot be divided upon divorce generally unless the entities are joined as a party to the dissolution proceedings. See Ehman v. Ehman, 156 So.3d 7 (Fla. 2nd DCA 2014). Just because a spouse may have used non-marital partnership or corporate assets for marital purposes does not convert the remaining partnership or corporate assets into marital assets. See Lassett v. Lassett, 768 So.2d 472 (Fla. 2nd DCA 2000). The company would have to be pled as a party in the divorce action and served by proper service of process to divide property held by a corporation, etc.
To assist you in asset protection and navigating equitable distribution in divorce, you need an experienced Jacksonville family attorney to assist you. Please call the Law Office of David M. Goldman, PLLC for a consultation.