Florida Divorce Law...

Florida Law - How Do We Divide Part-Marital / Part-Separate Property?

The situation of part-marital / part-separate property arises with property that started as separate property, but had some marital component added to it during the marriage.

The marital component can be:

• Cash investment from marital funds; or
• Labor of either party during the marriage.

If there is a marital component, the courts attempt to determine how much of the value was separate and how much was marital.

Typically, the separate property portion is the following:

• The value of the separate property at the date of marriage; plus
• Increase in value purely due to market conditions, not to any effort or investment.

The rest of the value is marital, and may be divided. Note that purely the effort in choosing investments may be found to be marital effort.

Usually, there are no clear facts that tell the court how this division should be made. Instead, the court has to estimate.

Cases:

Stevens (1995) 651 So2d 1306 (increase in value based on effort is marital, but increase based purely on market conditions is separate).

Becker (1994) 639 So2d 1082 (management of assets in profit-sharing plan counts as marital effort).

Webb (1994) 636 So2d 883 (does not matter which party put in the effort).

Landay (1993) 429 So2d 1197 (The wife had, from her separate funds, contributed the down payment on a home. The court held that she was entitled to a "special equity" in the home. The wife got half the value of the house, plus a share in the husband's half. Her share in the husband's half was 1/2 * (wife's separate contribution / total cost of home).)

Moon (1992) 594 So2d 819 (court mentions six factors in the context of profit sharing plans: 1. value of the plan at the time of the marriage (separate); 2. increases in value of the separate property solely to passive growth in premarital assets (separate); 3. value of profit-sharing funds acquired during marriage that are attributable to marital efforts (marital); 4. increase in value due to passive growth of marital portion (marital); 5. Growth in premarital profit sharing attributable to marital effort, such as investment decisions (marital); 6. Value of assets acquired after separation and income on that (probably separate)).

Parker (1992) 610 So2d 719 (passive appreciation on separate property remains separate).

Stefanowitz (1991) 586 So2d 460 (husband made down payment of $8,400 on $29,000 home; mortgage of $20,600 was paid during the marriage; husband is entitled to a 28.97% share in the appreciation; this was calculated as $8,400 / $29,000; since the home is now worth $85,000, the husband's separate share is 28.97% of $85,000, or $24,624; the marital share is $85,000 - $24,624, or $69,376; and the marital share is subject to equitable distribution).

Griffiths (1990) 563 So2d 773 (defined contribution pension accumulated during marriage is marital property, but accumulations on the pre-marriage portion are non-marital).

Email this page on to a friend.

Disclaimer: We are not giving legal advice. No warranties. We disclaim all legal liability. More...

Click here to go to top Florida divorce law page.

Click here for the Florida divorce legal table of contents.