When a couple goes through a divorce, they not only will have to emotionally separate, but a division of all property between them will also occur. This division of all assets and liabilities among a couple is known as equitable distribution. Florida statute provides that the only property subject to equitable distribution is marital property, with separate property remaining in the possession of the individual who acquired it. These classifications can become highly contentious as some assets have significant value, and may be removed from distribution if determined to be separate property. Equally, gifts exchanged between couples or gifts received from outside sources can become a litigious topic when determining their classification as marital or separate property. Your Orlando Divorce Attorney will be able to discuss with you the exact qualification of the gifts in question and whether or not you may be able to retain them after your divorce.
In order to determine the classification of a gift as marital or nonmarital, the court looks to Florida Statute 61.075. This statute provides that martial assets include “interspousal gifts during the marriage” while nonmarital assets include “assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.” These gifts in question could be anything from jewelry, cars, boats, or money; therefore, it is imperative to properly distinguish them as marital or separate property. The first distinction to be made is if the gift came from your spouse. If so then it is imperative to look at the timeline of this gift. Generally, any items acquired during the marriage are considered to be marital property, gifts follow a similar path. If the gift from your spouse came during the time of your marriage, it will be considered marital property subject to equitable distribution. However, if this gift from your spouse came prior to your marriage, this asset will be noted as nonmarital, and you will legally retain sole ownership of this property.
In contrast, if a gift was given by a third party during the time of your marriage it is likely such gift will be nonmarital property. However, there are exceptions to this rule. If this gift was a bequest that was then comingled with marital funds, the property that was once nonmarital will become marital property subject to equitable distribution. The most common issue comes in the form of inheritance from a deceased relative. If you or your spouse received property or money from an inheritance and subsequently placed those funds in a joint bank account with your spouse or added your spouse’s name to the property deed it will become marital property. If you are wishing to keep control of separate property, it is imperative that when receiving gifts during your marriage you intentionally keep separate marital funds and property from your nonmarital gifts.
If there is disagreement over the classification of a gift, the court provides that a party must present clear and convincing evidence to overcome the gift presumption. It is imperative to employ the skills and experience of a knowledgeable Orlando Divorce Attorney in this process. They will be able to discuss each gift you have questions on and determine the likelihood of their marital or separate distinction. Your Orlando Divorce Attorney will have considerable experience dealing with property division cases. Contact us with these questions, and any other questions on the Florida Divorce process.
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