Facts:
The client and his wife filed a Petition for Dissolution of Marriage then reconciled. The wife gave the client ½ of her share in a premarital strip mall during the period of reconciliation. The petition was still pending during the reconciliation and was never withdrawn or dismissed. The parties fought and are now pursuing the dissolution again.
Issue 1: How should the gift of ½ share in the premarital strip mall be categorized by the court?
Equitable distribution is governed by Florida Statute 61.075, which defines which assets are classified as marital or nonmarital. The statute clearly provides a cut-off date for acquisition of marital assets as follows:
The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.
Fla. Stat. 61.075(7). The court does not have the discretion to classify assets acquired after the date of filing as marital. Caruso v. Caruso, 814 So. 2d 498, 503 (Fla. 4th DCA 2002).
In drafting the statute, the legislature did not intend that assets acquired after parties merely express an intent to separate be considered nonmarital. Whittlesey v. Whittlesey, 954 So. 2d 1231, 1234 (Fla. 2nd DCA 2007). Instead, the legislature requires specific legal action be taken in the form of a petition for dissolution of marriage or a separation agreement before a cut-off date is established. Id . Likewise, a mere intent to reconcile, without any legal action to end the dissolution process, does not provide justification to amend the cut-off date for acquiring marital assets. The court cannot distribute assets acquired after the date a petition for dissolution was filed. Langevin v. Langevin, 696 So. 2d 601, 602 (Fla. 4th DCA 1997).
In Whittlesey, the wife filed a petition for dissolution of marriage in Belgium, and ten years later the husband filed a petition in Florida. The court held the cut-off date for establishing assets as marital was the date the second petition was filed in Florida. Whittlesey is distinguishable from the case at hand. There were two petitions filed. The filing of the second petition for dissolution indicates that the first petition was no longer pending, so it could not logically be referred to as a cut-off date for establishing marital assets. In the case at hand, there has only been one petition filed and the petition was still active when the gift took place.
The fact that the gift in the case at hand was interspousal should not change the gift’s classification as nonmarital. An interspousal gift is a marital asset if it was given during the marriage. Fla. Stat. 61.075(6)(a)(1)(c). The date the marriage functionally ends is the date the petition for dissolution is filed, which is why it is used as a cut-off date for establishing assets as marital or non-marital. The gift that occurred between these spouses did not occur while the marriage was intact, and therefore cannot be considered an interspousal gift during the marriage.
Conclusion:
The gift of one-half share of the premarital strip mall should be considered non-marital. The gift was given after the Petition for Dissolution was filed and while it was still active. The parties intended reconciliation is not relevant because they took no action to dismiss the petition. As such, the asset is non-marital, and the family court does not have discretion to distribute it.
