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In Florida divorce proceedings, protecting assets you owned before marriage or received as gifts or inheritances requires understanding the distinction between marital and non-marital property. While Florida law presumes that assets acquired during marriage are subject to equitable distribution, certain property can maintain its separate character—if properly handled.
What Qualifies as Non-Marital Property in Florida?
Under Florida Statute 61.075(6)(b), non-marital assets typically include:
- Assets acquired before the marriage
- Assets acquired by non-interspousal gift, bequest, devise, or descent
- Assets acquired in exchange for non-marital assets
- Income derived from non-marital assets (unless treated, used, or relied upon as marital)
- Assets excluded from marital assets by valid agreement (prenuptial or postnuptial)
Documentation: Your First Line of Defense
The key to protecting non-marital assets lies in documentation. According to the Florida Bar Association, maintaining clear records establishing the separate character of property is essential.
Important documents to maintain include:
For Bank and Brokerage Accounts
- Statements from the date of marriage (or account inception if later)
- Deposit slips and canceled checks
- Tax returns showing interest, dividends, or capital gains
For Real Estate
- Deeds and settlement statements
- Wire transfer documents tracing fund movements
- Documentation of improvements and mortgage payments
For Business Interests
- Operating agreements or shareholder agreements
- Tax returns and capital account statements
- Appraisals conducted before or during marriage
For Inherited or Gifted Assets
- Gift tax returns filed by the donor
- Insurance proceeds documentation
- Estate documents showing inheritance
The Commingling Trap
One of the most common ways non-marital assets lose their protected status is through commingling—mixing separate assets with marital assets. Several landmark Florida cases illustrate this principle:
In Amato v. Amato (1992), the court found that insurance proceeds received by a wife became marital property when deposited into a joint checking account used by both spouses.
Similarly, in Rogers v. Rogers (2022), funds gifted from a father’s trust lost their non-marital character when placed in the couple’s joint bank account before purchasing a boat.
Strategies to Protect Non-Marital Assets
1. Maintain Separate Accounts
As demonstrated in Street v. Street (2020), keeping inherited funds separate from marital accounts can preserve their non-marital status. The court ruled that bank accounts funded during marriage with inheritance remained non-marital because no marital funds were added.
2. Use Prenuptial or Postnuptial Agreements
A well-drafted marital agreement can clearly designate which assets remain separate property regardless of future actions. Our Brevard County family law attorneys can help create comprehensive agreements tailored to your situation.
3. Avoid Using Marital Funds for Non-Marital Assets
In Rennert v. Rennert (2020), the court found that borrowing against non-marital property to obtain new marital property didn’t cause the non-marital property to lose its separate character. However, using marital funds for improvements or maintenance can complicate matters.
4. Consider Trust Structures
Placing inherited assets or pre-marital property in properly structured trusts can provide additional protection against commingling claims.
The “Active Management” Consideration
Even when assets remain technically separate, their appreciation during marriage may be considered marital if resulting from either spouse’s efforts. In Palmer v. Palmer (2021), the court classified the entire $1.24 million appreciation of the husband’s pre-marital business stock as marital because it resulted from his continued efforts in the business.
Conversely, in Naranjo v. Ochoa (2023), the court ruled that appreciation from the wife’s advanced inheritance invested in mutual funds was not a marital asset, as research and selection of mutual funds using a buy-and-hold strategy did not constitute “efforts of either party” under Florida law.
Expert Assistance Is Essential
The distinction between marital and non-marital property often hinges on technical legal principles and detailed financial documentation. At Rhoden Law, our boutique family law practice offers both compassionate guidance and sharp legal knowledge to protect your assets during divorce.
Our team includes a family law guardian ad litem with expertise in both psychology and law, giving us unique insight into the complex interplay of emotional and financial issues in divorce cases. We excel at finding solutions that protect your interests while avoiding costly litigation whenever possible.
For more information about property division in divorce, visit our divorce property division page.
To discuss your specific situation with an experienced Brevard County family law attorney, call or text our office today or use the Contact form on our website for a complimentary phone consultation.