Marital v. NonMarital Assets in Equitable Distribution

Fl. Stat. Sec. 61.075(5)(a) and (b) sets out the difference between nonmarital and marital assets. When determining who receives what in a divorce, the court must decide which assets are marital and which assets are non-marital. All marital assets will be equitably distributed between the parties. Generally speaking an asset which was acquired prior to the marriage, will be considered nonmarital. Conversely, all assets acquired during marriage will be considered marital. Even though it appears that this general rule is fairly straightforward, many questions still arise as to which assets are marital. Some of the more common issues which come up are as follows:

1. Real Property- There is a presumption that all real property held by the parties as tenants by the entireties (whether acquired prior to or during the marriage) shall be a marital asset. (See, Robertson v. Robertson, 593 So.2d 491 (Fla. 1991).

2. Inheritance- Pursuant to Florida Statute Sec. 61.075(5)(b)(2), a spouse's inheritance is a nonmarital asset even if it is acquired during the marriage. However, if that spouse deposits his or her inheritance in a marital account and the funds are no longer capable of being traced, the funds will be considered commingled and a marital asset. (See, Amato v. Amato, 596 So.2d 1243 (Fla. DCA 1992).

3. Use of Nonmarital Asset for Marital Purpose- Use of income during the marriage which resulted from a nonmarital asset does not transform the nonmarital asset into a marital asset. Further, the future income stream is not a marital asset after the marriage is dissolved. (See, Barner v. Barner, 716 So.2d 795 (Fla. 4th DCA 1998).

4. Stock Options- Stock and stock option awarded to spouse by employer which were primarily intended as incentive for future services rather than as deferred compensation for past services are nonmarital assets. (See, Parry v. Parry, 933 So.2d 9 (Fla. 2nd DCA). Unvested stock options acquired during the marriage for past services during the marriage are marital assets. (See, Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002).

5. Accrued Vacation-Spouse's accumulated hours of leave from employer is a marital asset subject to distribution. (See, Purpura v. Kelly, 913 So.2d 110 (Fla. 1st DCA 2005).

6. Pensions- Spouse's pension benefits earned during the marriage is a marital asset. (Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986).

Additionally, it is important to note that if you want to claim that an asset is nonmarital, then you will have the burden of proof and you must specifically plead that an asset be set aside as nonmarital.