In a divorce case, when the court adjudicates the Husband’s and Wife’s respective claims regarding their property, the Court should first determine which assets and liabilities are non-marital.
Florida’s equitable distribution statute (Fla.Stat. Sec. 61.075) creates a presumption that “marital assets and liabilities” include the following:
1. Assets acquired and liabilities incurred during the marriage. Such assets and liabilities are presumed to be marital, regardless of whether they were acquired or incurred by one spouse alone or by both spouses together.
2. The enhancement in value and the appreciation of non-marital assets that results from either the efforts of either party during the marriage or the expenditure of marital funds or other marital assets. However, an increase in value of a non-marital asset, due to “passive” forces such as market conditions or inflation, does not result in a portion of the non-marital asset becoming a marital asset.
3. Gifts given by one spouse to the other during the marriage.
4. All vested and non-vested benefits, rights, and funds that accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
5. All real property that is held by the parties as tenants by the entireties, regardless of whether it was acquired prior to, or during the marriage.
Also, there are ways by which non-marital assets may become martial assets, particularly due to the co-mingling of marital funds in an account with non-marital funds. In this circumstance, all of the funds in an account that were non-marital, may be deemed marital funds by the divorce court.