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Marital Property

Which assets and debts are divided during a divorce? Any assets or debts that are marital assets and debts are divided when a couple divorces. Marital assets & liabilities are sometimes called marital property. Before assets, property & debts can be divided, it must first be determined what is marital and what is non-marital. What are marital assets and debts? Florida law defines marital assets and debts as:

  • Any assets acquired and any debt incurred during the marriage. It doesn’t matter if the asset or debt was acquired or incurred separately or together by the parties.
  • Interspousal gifts during the marriage. These are gifts that spouses give to each other. Such gifts are presumed to be marital property. This is regardless of where the money used to purchase the gift came from and whose name the gift may be titled in.
  • All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
  • All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.
  • All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is non-marital.
    • The burden of proof necessary to overcome the gift presumption for either real or personal property held in tenancy by entirety is by clear and convincing evidence that a gift was not intended.

Take a look at our page on tenancy by entirety to learn more about what a tenancy by entirety is and how it can affect asset division in an Orlando or Tampa divorce and throughout Florida.

It’s important to note that all assets acquired and liabilities (debts) incurred by either spouse subsequent to the date of the marriage and not specifically established as non-marital assets or liabilities are presumed to be marital assets and liabilities. Fla. Stat. § 61.075(8). Such presumption is overcome by a showing that the assets and liabilities are non-marital assets and liabilities. The presumption is only for evidentiary purposes in the marriage dissolution proceeding and does not vest title. Title to disputed assets shall vest only by the judgment of a court.

 Practice Pointer - Don’t Forget About Debts & Liabilities!

Remember it’s not just marital assets that will be divided during a divorce. The couple must also assign all debt accrued during the marriage, including mortgages or home loans, car loans, credit card debts, etc. to one of the spouses.

 

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