Separate Property Concerns in a Contested Divorce

Spouses who are thinking about filing for divorce in Tampa often hear the words “contested” and “uncontested.” What’s the difference between the two? In short, an uncontested divorce is one in which the spouses agree to all terms, from property division to support matters. A contested divorce, in contrast, means that the parties are contesting various issues such as alimony or the division of marital assets. According to an article in the Marco Eagle, determining what will happen to certain separate property can be a hotly contested issue, particularly when it comes to inherited funds.

Property Division Factors in a Florida Divorce

If you’re living in Tampa and you’re involved in a contested divorce, one of the items over which you and your spouse may be arguing is inherited money. Before we get into the details of how a Florida court will assess an inheritance—and whether it’ll be classified as separate or marital property—let’s have a quick reminder about how property division works in our state.

Under Florida Statute Section 61.075, marital assets and liabilities will be divided equitably. It’s important to note that equitably doesn’t necessarily mean equally. When determining how to divide marital property, the statute specifically allows the court to take into account many different factors, including but not limited to:

Each spouse’s contribution to the marriage, which can include care and education of the couple’s children or services as a homemaker;
Each party’s economic circumstances;
Duration of the marriage;
Either party’s career interruptions or education interruptions (to the benefit of the other spouse or the children);
Contribution of one spouse to the career or education of the other spouse;
Either spouse’s desire to retain any particular asset;
Either spouse’s desire to retain the marital home as a residence for the couple’s dependent child or children;
Contribution of each spouse to the acquisition, enhancement, and/or production of income;
Contribution of each spouse to the incurring of liabilities to the marital assets; and
Either spouse’s intentional dissipation, waste, depletion, or destruction of marital assets.

In a contested divorce, the court is also permitted to take into account “any other factors necessary to do equity and justice between the parties.”

Inherited Money and

Now, how will the court assess separate property in a contested divorce? The statute specifically defines nonmarital assets and liabilities (i.e., separate property) to include:

Assets acquired before the marriage;
Assets acquired separately by “noninterspousal gift”;
Income derived from nonmarital assets during the marriage unless that income was “treated, used, or relied upon by the parties as a marital asset”; and
Assets excluded from marital assets by a written agreement between the parties.

Let’s say that Spouse A lives in Tampa and inherits money from a relative during the marriage. Spouse A’s relative makes clear that the inheritance is for Spouse A alone. That inherited money looks a lot like an asset that has been acquired separately, and thus won’t be considered marital property and subject to division. However, this classification can get tricky depending on how Spouse A used the money during the marriage. Let’s take a look at a couple of scenarios in which the inheritance could actually be considered a marital asset:

Spouse A deposited the inheritance in a joint bank account with Spouse B, and the inheritance was commingled with marital funds. Because the funds were commingled, a court may say that the inheritance money is no longer traceable and thus looks like a gift to the marriage.
Spouse A deposited the inheritance in a separate account. However, Spouse A used funds from a joint checking account to hire a wealth management group to advise her about managing the funds. The inheritance increased in value because of the advice from the wealth management group. A court may indicate that Spouse A used marital funds to increase the value of her inheritance, and thus some of the increased value of the inheritance is in fact property of the marriage.

Contact a Tampa Family Law Attorney

Other complicated scenarios can arise when it comes to dividing marital property. If you have questions or concerns about how your assets will be classified and divided, it’s important to discuss your case with an experienced Tampa divorce attorney. Contact Samantha L. Dammer to learn more about how we can assist with your case.