Dividing assets in a Florida divorce can be complex, especially when questions arise about whether certain property belongs to both spouses or to one spouse alone. Before equitable distribution can take place, the court must first determine whether each item of property is marital or non-marital. This process—identifying and valuing assets accurately—lays the foundation for a fair divorce settlement.
Florida law presumes that all property acquired during the marriage is marital, but exceptions exist. If a spouse brought assets into the marriage or received gifts or inheritances, those assets might be protected—unless they were commingled or otherwise transformed during the marriage.
Whether you’re protecting what you owned before the marriage or seeking your share of what was acquired during it, an experienced Tampa divorce attorney is essential to accurately classify and value the marital estate. Getting it right can mean the difference between keeping or losing a home, business, retirement account, or other significant asset.
The Importance of Property Classification in Divorce
In every Florida divorce, courts apply the principle of equitable distribution, which means that marital assets and debts are divided fairly—though not necessarily equally. However, non-marital property is excluded from this process and remains with the spouse who owns it.
The classification of property as either marital or non-marital determines:
- What gets divided
- How much each spouse receives
- Whether claims of dissipation or enhancement apply
- Whether tracing or reimbursement is appropriate
Because these determinations can be fact-intensive and legally complex, working with a skilled Tampa divorce attorney is critical to protecting your financial interests.
Definition of Marital Property
Under Florida Statute §61.075, marital property generally includes:
- Assets acquired during the marriage, regardless of title
- Income earned during the marriage
- Property purchased with marital funds
- Retirement accounts accrued during the marriage
- Appreciation or enhancement of non-marital assets due to marital efforts
- Real property titled jointly
- Business interests developed during the marriage
- Joint bank accounts or investments
If an asset was acquired with income earned during the marriage, it is typically presumed to be marital, even if held in one spouse’s name.
A Tampa divorce attorney will review all account statements, deeds, and documents to determine how each asset was acquired and whether it meets the legal definition of marital property.
Definition of Non-Marital Property
Non-marital property includes:
- Property acquired before the marriage
- Gifts given to one spouse by a third party
- Inheritances received by one spouse
- Personal injury settlements (in some cases)
- Property excluded by a valid prenuptial or postnuptial agreement
- Property exchanged for other non-marital assets
- Income from non-marital assets, if not commingled
However, even clearly non-marital property can become marital if it is commingled, transmuted, or enhanced through marital efforts.
A Tampa divorce attorney will trace the origin and use of disputed assets to determine whether they have retained their non-marital character.
Commingling: When Non-Marital Becomes Marital
One of the most common issues in divorce litigation is commingling, which occurs when non-marital and marital assets are mixed together to the point where they cannot be distinguished.
Examples of commingling include:
- Depositing inheritance money into a joint account
- Using marital funds to pay down a non-marital mortgage
- Renovating non-marital property using joint finances
- Adding a spouse’s name to the title of a premarital home
Once commingled, a non-marital asset may lose its separate status and be treated as marital.
A Tampa divorce attorney will determine whether commingling has occurred and whether the asset can still be traced back to a non-marital origin.
Enhancement of Non-Marital Assets
Florida law recognizes that non-marital assets can become partially marital through enhancement, which occurs when:
- The value of a non-marital asset increases due to marital labor or investment
- Marital funds are used to pay expenses or improve the asset
- The other spouse contributes to the appreciation of the asset
Common examples include:
- A spouse helps manage or grow the other spouse’s premarital business
- Marital funds are used to improve or maintain a rental property
- Joint efforts significantly increase the value of an inherited investment account
In these situations, the increased value—not the original asset—may be subject to equitable distribution.
A Tampa divorce attorney will use financial experts or appraisers to calculate the marital portion of any appreciation.
Valuing Marital Property
Once assets are classified, the next step is to assign accurate values to them. The valuation process depends on:
- The nature of the asset (liquid or illiquid)
- The date of valuation (usually the date of filing or distribution)
- Whether there are market fluctuations or unique factors to consider
Common valuation methods include:
1. Real Estate
- Appraisals by licensed real estate professionals
- Comparative market analysis (CMA)
- Property tax assessments (less reliable)
2. Vehicles and Personal Property
- Kelley Blue Book or NADA Guides
- Dealer trade-in or private sale value
- Receipts, depreciation schedules, or replacement costs
3. Bank Accounts and Investments
- Statement balances as of the date of filing
- Adjustments for interest, dividends, and withdrawals
4. Retirement Accounts
- Present value of pensions
- Statement balances for 401(k)s, IRAs, and TSPs
- Calculation of marital vs. non-marital contributions
5. Businesses
- Forensic accounting and business valuation experts
- Discounted cash flow or market comparable methods
- Evaluation of goodwill and book value
A Tampa divorce attorney will help select appropriate experts and present credible evidence to support your valuation positions.
Valuing Debts
Equitable distribution also applies to marital debts, which include:
- Credit card balances
- Mortgages and home equity loans
- Vehicle loans
- Personal loans
- Tax liabilities
Debts are treated similarly to assets: those incurred during the marriage are presumed marital, even if held in one spouse’s name. However, debts related to non-marital property may be treated separately.
A Tampa divorce attorney will assess whether debts should be shared or assigned and help negotiate settlements that preserve financial stability.
Tracing Non-Marital Property
Tracing is the process of following the history of an asset to prove its non-marital origin. This requires:
- Original documentation of purchase
- Proof of source of funds
- Bank or investment account statements
- Titles, deeds, or contracts
- Testimony about the intent and use of the asset
Tracing is especially important when:
- Funds have been moved between accounts
- Property has been partially sold or reinvested
- Joint accounts were used temporarily
- One spouse is contesting ownership or value
If the asset cannot be traced clearly, the court may presume it is marital.
A Tampa divorce attorney will compile the necessary records and legal arguments to protect your separate property.
The Role of Prenuptial and Postnuptial Agreements
Prenuptial and postnuptial agreements can determine whether certain property is treated as marital or non-marital. Common clauses include:
- Excluding a business from division
- Preserving separate property rights
- Waiving claims to appreciation of non-marital assets
- Setting valuation or buyout terms in advance
These agreements are generally enforceable in Florida as long as they are:
- Voluntarily signed
- Supported by full financial disclosure
- Not unconscionable at the time of execution
A Tampa divorce attorney will enforce or challenge such agreements as part of your property division strategy.
Property Division and Equitable Distribution
Once assets and debts are identified, classified, and valued, the court proceeds with equitable distribution. Factors the court considers include:
- Each spouse’s contributions to the marriage
- The duration of the marriage
- Economic circumstances of each spouse
- Whether one spouse interrupted a career for the marriage
- Intentional dissipation of marital assets
- Desirability of keeping certain assets intact (e.g., a business)
Equitable does not always mean equal. A judge may award a greater share of the estate to one spouse based on fairness.
A Tampa divorce attorney will present evidence and legal analysis to justify the proposed distribution.
Dealing with Hidden or Undisclosed Assets
When one spouse attempts to hide assets or understate their value, forensic discovery may be necessary. This can include:
- Subpoenas to financial institutions
- Depositions of accountants or business partners
- Examination of tax returns and bank statements
- Requests for production and interrogatories
- Expert testimony from forensic accountants
Concealing assets may result in sanctions, unequal distribution, or a reopening of the case after judgment.
A Tampa divorce attorney will use aggressive discovery tactics to uncover hidden wealth and ensure full disclosure.
Protecting Property During Divorce
Before property division is finalized, spouses must avoid actions that:
- Sell or transfer assets without consent
- Use joint accounts for personal spending
- Destroy or damage marital property
- Accrue new debts that the other spouse may have to pay
Courts can enter injunctions to prevent dissipation or require accounting for all transactions.
A Tampa divorce attorney will seek temporary orders to preserve property until final judgment.
Property Division in High-Asset Divorces
High-asset divorces present special challenges, including:
- Valuing multiple businesses or partnerships
- Handling offshore accounts or trusts
- Dividing complex investment portfolios
- Dealing with stock options and deferred compensation
- Addressing tax implications of large transfers
These cases often require a team of experts and a detailed understanding of how Florida law interacts with federal tax and securities regulations.
A Tampa divorce attorney will assemble the right professionals and apply sophisticated strategies to manage complex property division.
Property Division and Taxes
Transfers of property incident to divorce are typically tax-free under IRS rules, but exceptions exist. Tax implications to consider include:
- Capital gains from sale of real estate
- Tax basis in transferred securities
- Treatment of alimony under post-2018 tax law
- Division of tax refunds or liabilities
- Rollovers of retirement accounts via QDRO
Failing to account for tax consequences can result in unexpected financial burdens after the divorce is finalized.
A Tampa divorce attorney will work with tax professionals to ensure a tax-smart settlement.
FAQ
Q: What’s the difference between marital and non-marital property?
A: Marital property is acquired during the marriage and subject to division. Non-marital property was acquired before marriage or by gift/inheritance and generally remains separate.
Q: Can I keep the house I bought before marriage?
A: Yes, unless you commingled it or added your spouse to the title. If marital funds enhanced its value, your spouse may have a partial claim.
Q: What if my spouse used marital money to improve their non-marital asset?
A: The increase in value may be considered a marital asset, even if the original property is non-marital.
Q: Is my 401(k) marital property?
A: The portion earned during the marriage is marital and subject to division. Contributions before or after the marriage are usually non-marital.
Q: What if I inherited money during the marriage?
A: Inheritance is non-marital if kept separate. If commingled with marital accounts, it may lose its protected status.
Q: Can debts be non-marital?
A: Yes. Debts incurred before marriage or for non-marital purposes (e.g., gambling) may be assigned solely to one spouse.
Q: What happens if my spouse hides assets?
A: The court can impose penalties, award more assets to the other spouse, or reopen the case if fraud is discovered.
Q: How do I prove a property is non-marital?
A: Through documentation showing when and how it was acquired, and that it was kept separate from marital finances.
Q: Do we divide everything 50/50?
A: Not necessarily. Florida uses equitable distribution, which means fair—not always equal—division based on many factors.
Q: Can we agree to our own property division?
A: Yes. A marital settlement agreement is enforceable if both parties consent, and it complies with Florida law.
Dividing property in a Florida divorce requires more than listing assets and splitting them down the middle. The process begins with identifying whether each asset is marital or non-marital, valuing those assets accurately, and presenting a strategy for equitable distribution. Without clear evidence and legal advocacy, you risk losing assets that are rightfully yours or being assigned debts that are not. A seasoned Tampa divorce attorney can help you navigate this critical phase of divorce and ensure that your financial future is built on a solid foundation.
The McKinney Law Group: Helping Tampa Clients Navigate Divorce with Confidence
At The McKinney Law Group, we help Tampa residents understand their options and make informed decisions during divorce. Whether you’re just beginning the process or ready to file, we provide the guidance and support you need every step of the way.
We assist with:
✔ Filing for divorce in Hillsborough County
✔ Understanding your rights under Florida law
✔ Addressing common questions about support, custody, and assets
✔ Guiding you through both contested and uncontested divorce
✔ Helping you move forward with clarity and confidence
Call 813-428-3400 or email [email protected] to schedule your Tampa divorce consultation.