2665 S. Bayshore Drive, Suite 1204, Miami, Florida 33133
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Knowledgeable Miami Lawyers Preserve Your Separate Property in a Florida Divorce

Careful representation protects your wealth in equitable distribution

At Rafool, LLC, our experienced Miami divorce lawyers take great care to assemble the evidence you need to prove the necessary elements of your case. Under Florida law, a spouse’s separate property is not part of the marital estate and is not subject to equitable distribution in a divorce. Securing your separate property is an important step toward ensuring your financial stability as you begin the next stage of your life. But to hold onto your separate property, you must demonstrate that each item meets the requirements. We may be able to reach a property settlement with your spouse, so you don’t even have to go to court. But when it’s necessary to go to court, you can rely on our skill and dedication as we work toward the best possible outcome.

Requirements for separate property in Florida

Under Florida family law, there are various reasons why an asset or debt could be considered separate property:

  • The property was acquired prior to the marriage.
  • There was a growth in value of separate property.
  • The property was a gift from someone other than the spouse.
  • The property came as an inheritance.
  • The property was acquired using only the spouse’s separate property.
  • The property was designated as separate in a prenuptial or postnuptial agreement.
  • A personal injury damage award or settlement was acquired during the marriage.

However, it is also important for the property to remain separate during the marriage. If the owner allows an asset to be treated as marital property, the court can subject the asset to equitable distribution.

Common ways separate property can be transformed into a marital asset

According to legal theories of transmutation, separate property can become marital property, in whole or in part, via these processes:

  • Commingling — When a spouse takes separate funds and puts them into a bank account held jointly with the spouse, it becomes impossible to tell whether withdrawn funds are separate or marital. The court will treat the entire account as a marital asset.
  • Titling — If one spouse owns a home and puts the other spouse’s name on the deed, the home is no longer separate property.
  • Active appreciation — When one spouse owns an asset and the other spouse enhances its value through the application of talent and industry, the second spouse can make a claim in equity to an ownership stake. We see this often with businesses: one spouse is the owner, but the other spouse works, often for no payment or below the market rate, and participates materially in the growing of the business.
  • Implied-in-fact gift — This occurs when an owner spouse, without making an overt statement, treats an asset as though it is intended to be placed in the marital estate. One example is a vacation home that the owner freely shares with the other spouse so that any observer would reasonably conclude it was family property.
  • Agreement — Just as a couple can use a prenuptial or postnuptial agreement to designate property as separate, the parties can execute an agreement that designates certain property as marital.

Parties to divorce often assert an ownership right to marital and nonmarital property by citing one of these theories and alleging facts in support of it. Our attorneys have been on both sides of such arguments. We know the substantive law and what type of evidence is necessary to prevail in court. Regardless of which side you are on, you can trust our Miami law firm to take meticulous care in preparing your case so we can go to court armed with all the pertinent facts needed to best present your case.

Contact our Miami divorce lawyers to secure your rights to separate property

How the court rules on issues of separate property will greatly affect your financial security after divorce. Trust the experienced lawyers at Rafool, LLC to make the best argument possible in support of your rights. To learn more, call us at 305-567-9400 or contact our Miami office online to schedule an initial consultation.

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