In a Divorce, If I Earned It, Do I Keep It?

When it comes to marriage and divorce, the word “individual” loses much of its meaning. Courts rarely care how an asset is titled, or which spouse’s name is on a savings account. However, they are interested in how the account originated and what happened with it after it was established.

Florida operates under the laws of “equitable distribution,” which essentially means property acquired during the marriage belongs to the spouse who earned it, and during a divorce, all assets and liabilities are to be divided between the spouses in a fair and equitable manner.

To perform a distribution, all assets must be designated into one of two categories: either non-marital or marital property. It’s a non-marital property if you earned or created it before marriage, if someone gave the money specifically to you, or if you inherited the funds. Otherwise, it’s marital property even if only your name is on the account.

When it comes to liquid assets such as savings accounts, the lines between separate and marital property can blur, even if you opened the account before you married.

For example, you might have made deposits during your marriage, even though the account was originally your separate property. In legal terms, you’ve “commingled” the account. Generally, the balance as of the time of your marriage is your separate property, but the remainder is marital money. In a divorce, you would have the right to retain your separate portion, but a court will divide the remainder between you and your spouse.

If your divorce is amicable, your spouse can take a share you’ve agreed on and you can both move on. Otherwise, a court will have to decide the division for you. If you spend the money before the divorce is final, the account is typically charged to your share of assets in the overall property division. In this case, you’ll have to reimburse your spouse for a portion of its balance, either with a cash payment or by giving another marital asset.

A divorce settlement can be excruciating. It is not always patient; it is not always kind. It can be rude, self-seeking, and easily angered. If you’ve developed a comfortable nest of financial funds, you may find these benefits at the center of your divorce settlement maelstrom.

However, in most cases, you will find a way to make a fair and equitable split, especially if you are organized, prepared, and knowledgeable about your legal options and rights.

About the Author

Tamara Grossman is an attorney with eight years of courtroom experience in family law and other legal matters. Ms. Grossman has been a partner in a multistate litigation law firm and, most recently, was an attorney at a Boca Raton family law firm.