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The difference between marital and separate property in a divorce

Unless you and your spouse have a marital agreement, the courts we’ll be the ones to split your property in your divorce. Florida law aims for fairness with its equitable distribution standard. The judge will look at an inventory of your assets and debts and then try to find a fair way to split that property and those liabilities between you and your ex.

One of the biggest concerns, other than the interpretive quality of fairness as a standard, is concern about what property gets split up and what property is not vulnerable to division. Spouses sometimes claim that they should have a share of property that they don’t truthfully have a right to claim. Other times, a spouse might wrongfully try to hide assets or shield them from division by claiming they are separate property.

What is the difference between separate and marital property in a Florida divorce?

Separate property is usually not subject to division

All of what you own and all the debts you owe fall typically neatly into either the category of marital property or separate property. The courts look at historical ownership and the date of acquisition when making determinations about what property is separate and what is marital.

Unless you have an agreement in place setting your own rules for individual possessions, debts and income, anything you acquired during the marriage will mostly be marital property. What you purchase with marital income will also be marital property.

Items you owned before your marriage and income will usually remain your separate property. Any inheritance that you receive, including during your marriage, is separate property if it is in your name only.

Commingling can complicate property division

However, it is possible for someone to commingle inherited or separate property in a way that gives their spouse a claim to it. Even if you own your home before you got married, for example, if your spouse has helped pay the mortgage, pay the taxes or cover the costs of maintenance and repairs to the home, they may have a partial interest in its ownership. The same is true of financial accounts that you give them control over or access to during your marriage.

A careful review of both state law and your property inventory can give you an idea of the likely outcome of property division. Careful planning can help you protect certain assets or claim property as marital in the divorce.