Protecting Separate Property in Florida

Florida follows equitable distribution—meaning courts divide marital assets fairly (not necessarily equally) under Florida Statute § 61.075. But here's the key: non-marital property stays with its owner. The challenge is proving what's non-marital after years of marriage. Whether you're pursuing an uncontested or contested divorce, understanding tracing, enhancement claims, and commingling risks is essential to protect what's yours.

What Qualifies as Non-Marital Property?

Florida law recognizes six primary categories of non-marital assets and liabilities:

• Pre-marriage assets: Property acquired before the marriage
• Inheritances: Assets received by bequest, devise, or descent
• Gifts: Property given specifically to one spouse
• Income from non-marital assets: Unless treated as marital income
• Contractually excluded property: Assets identified as non-marital in a valid prenuptial or postnuptial agreement
• Liabilities from forgery: Debts incurred due to the other spouse's forgery

The general rule: marital assets get divided; non-marital assets remain with their owner. But you must prove the non-marital character—if you can't, the court may presume the asset is marital.

When Non-Marital Property Becomes Partially Marital

Even clearly non-marital property can become partially marital through enhancement. This happens when:

• Marital labor or effort increases the asset's value
• Marital funds are used to pay expenses or make improvements
• The other spouse contributes to appreciation of the asset

In these cases, the increased value—not the original asset—may be subject to equitable distribution. For example, if you owned a business before marriage worth $100,000, and it's now worth $500,000 partly due to both spouses' efforts during marriage, the $400,000 appreciation may be marital property.

Tracing: Proving Non-Marital Origin

Tracing is the process of following an asset's history to prove its non-marital origin. Florida courts allow tracing even when assets have been partially commingled—but you need evidence.

Successful tracing requires:

• Source documentation: Proof of the original non-marital asset (pre-marriage statements, inheritance documents, gift letters)
• Transaction trail: Bank statements, wire transfers, and records showing the flow of funds
• Current ownership proof: Linking the current asset to its non-marital source

If the asset cannot be traced clearly, the court may presume it is marital and divide it accordingly.

The Commingling Trap

Commingling occurs when non-marital and marital assets become mixed. Common examples include:

• Depositing inherited funds into a joint bank account
• Using inheritance money to renovate the jointly-owned marital home
• Transferring title of inherited property into both spouses' names
• Using inheritance proceeds to pay down marital debt

These actions can transform protected non-marital property into a marital asset subject to division. Florida recognizes multiple commingling theories, making it critical to keep non-marital assets clearly separate.

Special Rule: Tenants by the Entireties

Florida law provides special protections for property held as tenants by the entireties—a form of ownership available only to married couples. However, this creates a presumption issue in divorce:

• Property held as tenants by the entireties is presumed marital
• To overcome this presumption, you must prove it should be treated differently by clear and convincing evidence
• This is a high burden—you'll need strong documentation of the non-marital source

Intentional Dissipation

Florida courts take dissipation of marital assets seriously. Under § 61.075, courts specifically consider "intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to filing."

If your spouse dissipated marital assets, the court may:

• Award you a larger share of remaining assets
• Credit you for the dissipated amount
• Consider the conduct when determining equitable distribution

Documentation Is Everything

To protect your non-marital property claims, maintain:

1. Pre-marriage asset inventories: Account statements dated before your wedding
2. Inheritance records: Wills, probate documents, trust distributions, bank deposit records
3. Separate accounts: Accounts used exclusively for non-marital property
4. Gift documentation: Letters, cards, or other proof that a gift was intended for you alone
5. Transaction records: Bank statements showing the non-marital source of funds
6. Real estate documents: Deeds, closing statements showing non-marital down payments

Estimate Your Florida Divorce Costs

Non-marital property disputes can significantly increase divorce costs, especially when tracing or forensic accounting is needed. Florida's filing fee is approximately $408-$409 (varies by county). Use our calculator to estimate total expenses:

Practical Protection Strategies

• Keep non-marital property separate: Don't commingle inheritances or premarital assets with joint accounts
• Document everything: Create a clear paper trail from source to current ownership
• Use dedicated accounts: Keep non-marital funds in accounts titled only in your name
• Consider a marital agreement: A prenuptial or postnuptial agreement can clarify property characterization
• Be careful with title changes: Adding your spouse to a deed may create marital property
• Track enhancements: If marital funds improve non-marital property, document the contributions

Key Takeaways

• Non-marital property stays with its owner: But you must prove its non-marital character
• Six categories of non-marital assets: Pre-marriage, inheritances, gifts, income from non-marital sources, contractually excluded, and forgery-related debt
• Enhancement can create marital interest: Appreciation from marital effort may be divisible
• Tracing is essential: If you can't trace it, it may be presumed marital
• Commingling is dangerous: Mixed assets may become marital property
• Dissipation matters: Courts can adjust distribution for wasted assets

For the complete Florida property division guide and divorce timeline, see our detailed resources. For official forms and self-help information, visit the Florida Courts Self-Help Center.