Posted by Nydia Streets of Streets Law in Florida Divorce

What is considered non-marital or separate property in a Florida divorce? Generally assets acquired before marriage, acquired with non-marital funds, or acquired by gift or inheritance are separate assets belonging to the spouse who owns them. It is possible for a court to mistakenly identify separate or non-marital assets as marital, as happened in the case Street v. Street, 2D18-283 (Fla. 2d DCA May 1, 2020).

During the parties’ marriage, neither held w-2 employment and they relied on passive income and funds from the former husband’s non-marital accounts and loans from the former husband’s father. At a trial on the former wife’s petition for divorce, the court found only two of the former husband’s accounts to be non-marital and distributed all other assets at issue between the former husband and the former wife. The court ordered that the former husband make an equalizing payment to the former wife in the amount of almost $1 million. The former husband appealed.

The court reversed the equitable distribution determination, holding that the trial court erroneously held many of the former husband’s premarital assets to be marital. As to bank accounts, the court held “Both First Bank No. 4649 and Raymond James No. 0443 were opened prior to the marriage and were only listed in the husband's name. There was no evidence that these accounts had been commingled with marital funds. [citations omitted]. [. . .] Although Charles Schwab No. 9688, JP Morgan No. 8001, and JP Morgan No. 9009 were opened during the marriage, these accounts were funded by the husband's nonmarital accounts. The wife admitted that she did not put any marital funds into any of these accounts. Additionally, the husband's expert did a full tracing of JP Morgan No. 8001 and JP Morgan No. 9009 and testified that no marital deposits were made into these accounts. Because these accounts only contained assets that were acquired by the husband prior to the marriage and there was no evidence of commingling, these accounts should have been classified as nonmarital. [citations omitted]. However, the trial court properly concluded that the husband failed to meet his burden in proving that First Bank No. 0878 was a nonmarital asset. The husband testified that this account was opened prior to the marriage. However, his expert testified that it was opened during the marriage and that it was fully funded by one of the husband's nonmarital accounts. The wife's expert was unsure whether to classify this account as marital or nonmarital because no statement was provided for this account. Given the conflicting testimony between the husband and his expert as to when the account was opened, the husband failed to meet his burden to prove that this account was nonmarital.”

The court reached the same conclusion regarding vehicles and stocks owned by the former husband, holding “The trial court erred in classifying the husband's stock in First Bancorp, AIG, AmerisourceBergen, Western Union, First Horizon, Host Hotels, and Yum Brands as marital assets. The husband acquired stock in these companies prior to the marriage, and there was no evidence of enhancement or commingling or that they were given to the wife as a gift. [. . .] The trial court erred in classifying the 2016 Jaguar, the 2014 Mercedes Benz, the BMW Motorcycle, and the Harley Davidson Motorcycle as marital assets. Although the 2016 Jaguar, the 2014 Mercedes Benz, and the BMW Motorcycle were acquired during the marriage, they were purchased with funds from the husband's First Bank Trust 5852 account, which the trial court properly found was nonmarital. Because the husband purchased these vehicles with nonmarital funds, they are nonmarital assets not subject to equitable distribution. [citations omitted]. Because the husband received the Harley Davidson Motorcycle as a gift from his father, it is a nonmarital asset. [citation omitted] However, the trial court properly concluded that the husband failed to meet his burden to prove that the 2012 Mini Cooper, the 2012 Ford, and the 2010 Greyhawk Mini were nonmarital assets. These vehicles were acquired during the marriage, and there was either no testimony or inconclusive testimony as to what account was used to purchase these vehicles.”

Had the former husband not appealed the judgment, he would have had to pay the former wife hundreds of thousands of dollars of his non-marital funds. Schedule a consultation with a Miami divorce lawyer to understand the complexities of your case.