Posted by Nydia Streets of Streets Law in Florida Divorce

When it is time to seek a Florida divorce, many spouses have the misconception that because an asset is titled in one spouse's name alone, the titled spouse owns the asset 100 percent. If the asset was purchased during the marriage with marital funds, this is false - title does not control who owns an asset or who owes a debt incurred during the marriage. How about when a spouse has money earned prior to marriage that is deposited into an account used during the marriage - are those funds and any assets purchased with them marital or non-marital?

In the case DiStefano v. DiStefano, 2D17-967 (Fla. 2d DCA 2018), the former husband disputed the trial court's findings that a Toyota and a home purchased during the marriage were the former wife's non-marital property. The evidence showed the former wife owned a house prior to marriage which she sold. She then deposited the sale proceeds into a bank account she had prior to marriage which was only in her name. During the marriage, the former wife also deposited her paychecks into this account and paid bills from it. 

Subsequently, the former wife purchased a home using funds from the same bank account.  The home was titled in her name alone without the former husband, and the parties resided in the home during the marriage. She also purchased a Toyota by trading in a vehicle she owned prior to marriage and paying with funds withdrawn from the aforementioned bank account. The trial court found both of these assets to be former wife's non-marital property because the source of funding for them could be traced to non-marital money. 

The appellate court reversed, holding that because the former wife commingled her non-marital funds with marital funds (money earned during the marriage), the accounts lost their non-marital nature and thus purchases made from those accounts during the marriage resulted in marital assets. Therefore, the court reversed the trial court's ruling and remanded with instructions to classify the vehicle and home as marital assets and to revise the equitable distribution scheme accordingly. 

The best way to protect your non-marital assets and to ensure that money and property you intend to be yours remains so is to enter a Florida prenuptial agreement. With this contract, you and your spouse-to-be have the freedom to decide how you want your marriage to be dissolved rather than how the default laws determine your rights and obligations. Schedule a consultation with a Miami prenuptial agreement lawyer to go over the agreement that fits your situation.