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Separate Property Can Become Marital

An asset can sometimes start out as non-marital property (separate property) not subject to division in a divorce and then over time become a marital asset in whole or in part. In a Tampa or Orlando divorce and throughout Florida, one way a non-marital asset can become marital is through appreciation in value. Florida law states that a non-marital asset can become a marital asset through appreciation in the following ways:
  1. Any enhancement in value and appreciation of non-marital assets or separate property as a result of the efforts of either party during the marriage.
  2. Any enhancement in value and appreciation of non-marital assets or separate property from the contribution to or expenditure of marital funds and/or other forms of marital assets. 

Number one above really just means that the amount that your separate property appreciated in value may become marital property if it can be shown that your spouse's efforts helped contribute to that appreciation. Number two above means that your separate property's appreciation in value may become marital if it appreciates by contributing marital funds to the separate property or if it appreciates from spending marital funds on it. 

Can an Asset be both Marital & Non-Marital?

Yes. Assets can sometimes be both marital and non-marital assets or parts of an asset can be marital and parts can be separate property. A good example is a 401(k) that was started and funded prior to marriage, but was contributed to during the marriage using the spouse’s income or paycheck (a spouse’s income or paycheck is considered a marital funds). The part of the account that was funded prior to the marriage could be considered non marital and the part that was funded during the marriage could be considered marital.

 Practice Pointer - Complications

Whether or not non-marital property became marital property is a complicated area of the law, especially as it relates to investments and retirement accounts. Due to the complex nature of this area of the law, it is advisable that you hire an experienced Orlando or Tampa divorce attorney if you anticipate any difficulties.


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