Is property purchased primarily with non-marital funds and initially deeded to one spouse considered non-marital property? These are the types of issues that come up all of the time in family law. It is part of equitable distribution. People are constantly wondering whether something belongs to the individual or to the married couple. As with most areas like this in family law, there are often gray areas.

We start by following the Statute 61.075(5)(2), which provides that “all real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is non-marital.” Additionally, marital assets and liabilities include, “assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. The enhancement in value and appreciation of non-marital assets resulting either from the efforts or of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. Interspousal gifts during the marriage. All vested and non-vested benefits, rights, and funds accrued during the marriage and retirement, pension, profit sharing, annuity, deferred compensation, and insurance plans and programs.” Florida Statute 61.05(5)(1)(a)-(c).

As always, Florida uses appellate cases to interpret the statute. This may seem odd that something needs “interpretation,” but words are the language of an attorney’s trade; therefore, every single word truly matters. The way to interpret something is by analyzing on a case by case basis to try and get the most similar facts to yours. In the case of Stough v. Stough, the burden was placed on the former wife to prove that the home was not a marital asset. The burden is placed “on the party claiming jointly held property is not a marital asset to present proof establishing such status by preponderance of the evidence.” The former wife argued that because she placed non-marital inheritance money as a down payment for the home, the home was non-marital. However, the court held that the former wife did not meet her burden of proof because the funds where the down payment originated were deposited into a joint account to purchase other living expenses for the couple. Where a non-marital asset becomes intermingled, the asset becomes marital. This is a very important concept, “intermingled.” For example, if a husband had a house prior to a marriage but then put his wife’s name on the house, it is presumed to be marital. If a husband inherited $100,000.00, although inheritance is non-marital, if that money was put into a joint account and the money lost its individual character after a certain period of time, that money would be probably deemed intermingled and therefore marital. It is very important to keep something that was at one time non-marital separate from the marriage.

There are ways to overcome these gifts or intermingling. One way is by claiming duress. This is very hard to prove, however. Duress has been defined as “a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.” This is an extremely high standard and very hard to prove. One can imagine that we all feel like we were under duress at times during our marriage and forced to do things just to keep peace in the house. Duress is extremely hard to win on.

If you have any more questions concerning equitable distribution regarding your marital home or inheritance or other marital property, contact Kenny Leigh & Associates at our website www.menonlyfamilylawonly.com. Kenny Leigh & Associates exclusively represents men in the area of family law and has six offices across the State of Florida, including Jacksonville, Fleming Island, Gainesville, Daytona, Ft. Walton Beach, and Boca Raton.