Second only to child custody, property disputes are seemingly the most stressful negotiations couples will face. Spouses regularly disagree over items obtained throughout the relationship. Some of these items are easy to distribute, while others- namely sentimental or inherited items- can become significant battles.
Many people believe that items that are inherited are not eligible for equitable distribution. Generally this is true, but under Florida law, there may be circumstances where your spouse could be entitled to these assets, depending on you or your spouse’s actions. So, the question is, is it possible to protect inheritance? The Virga Law Firm’s Florida attorneys can advise you on steps you can take to maximize your protection.
Equitable Distribution: Inherited Assets
Under Florida's Equitable distribution rules, the Court will try to divide up a divorcing couple’s assets as equally, or as “fair” as possible. Courts often seek an “even” split, but in certain cases, an uneven split may be more “fair”. Perhaps a party has substantially more non-marital property and does not need two homes; or maybe a party is unable to service the mortgage or maintain a residence; perhaps a party has greater need for liquid assets on a short term basis; or perhaps one party has put more than their fair share of marital efforts and hard work resulting in increased asset value. Courts may look at the surrounding circumstances when determining the distribution.
"In evaluating assets that come to one spouse by inheritance, the task for the trial court in a dissolution proceeding is to determine whether the recipient intended that the assets remain non-marital or whether the recipient's conduct during the marriage gives rise to the presumption of a gift to the other spouse." Lakin v. Lakin, 901 So.2d 186, 190 (Fla. 4th DCA 2005).
A party may show intent to keep an asset nonmarital if "the non-marital property is placed into a separate account, no other funds are deposited into it, and the account is never intermingled with the parties' other funds." Id.
The above are just some of the ways that parties can protect themselves; or, conversely - inadvertently turn non-marital property into marital property by their actions.
What qualifies as marital property?
As the name suggests, marital property includes assets, real property, personal property, etc. that are obtained during the marriage. In most cases, items owned prior to marriage are excluded as “non-marital” property. Again, here are exceptions, however, and you or your spouse’s conduct can transform non-marital property into divisible marital property; this is why contacting one of our Virga Law Firm Florida attorneys is important.
Protect Your Inherited Assets in Advance
Before saying “I DO,” you should take stock of any premarital assets and your future intentions for them. If you have items you have inherited, or if you anticipate a large inheritance, and you intend to keep these items as separate, non-marital property, you may want to lay out the ground rules, should you divorce, in a pre-marital or prenuptial agreement.
Your Virga Law Firm Florida Attorney can help draft a pre-marital agreement regarding your pre-marital property and assets that you wish to retain if you divorce.
Settlement Negotiations
When you find yourself starting divorce proceedings without the protection of a prenuptial agreement, there are still options. Working with a Virga Law Firm attorney will allow you to receive legal advice at all stages, and be appraised of your rights and obligations at all times. The attorney will look at your specific situation, pre and post marriage assets, inherited and sentimental items, the spouse’s conduct and all relevant factors to help you draft a settlement consistent with your concerns.
Whether needing to create a prenuptial agreement for assurances prior to marriage, or you need to craft a divorce settlement that will help you best retain your inherited and sentimental items, contact the Virga Law Firm today for assistance on how to best meet your goals.