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Equitable Distribution: The Marital Interest in a Non-Marital Property or Premarital Home

As couples marry later in life or have second marriages, one or both of the parties may already own a home. As a result, in many divorce cases, the parties live in a home owned solely by one of the parties.  In these cases, a common question is whether the non-owner spouse has any interest in the home.


Equitable distribution in Florida is governed by section 61.075, Florida Statutes.  When dealing with the division of a couple’s assets and liabilities, the first step in the analysis is for the court to set aside any non-marital assets and liabilities.  The court is then tasked with distributing the marital assets and liabilities between the parties, with the premise that such assets and liabilities should be divided equally.


Under section 61.075(6)(a)(1)(b), Florida Statutes, marital assets are defined to include the “enhancement in value and appreciation of nonmarital assets resulting either from the efforts 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.”


If marital funds are used to enhance a non-marital asset, the value the enhancement is therefore marital. Accordingly, if the parties built a home on non-marital property, the enhanced value relating to the structure is marital.  The relevant statutory language also clearly provides that, under certain circumstances, the appreciation of a non-marital asset is indeed a marital asset. See Kaaa v. Kaaa, 58 So. 3d 867, 870 (Fla. 2010).  In particular, the passive appreciation of a non-marital asset, such as a home, is properly considered a marital asset where marital funds or the efforts of either party contributed to the appreciation.  Id.  The Florida Supreme Court has held that, if one party uses marital funds to pay the mortgage on a non-marital property and the non-owner spouse makes “contributions” to the property, some portion of the passive appreciation on the home is subject to equitable distribution.  Id. at 871.  


The Florida Supreme Court adopted the following methodology for determining how the appreciated value is properly allocated between the parties:

If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a) 2, Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.

See Kaaa, 58 So. 3d at 872.


Thus, when non-marital real property is encumbered by a mortgage that was paid by marital funds, a pro-rata portion of the passive appreciation in the property’s value that accrues during the course of the marriage is a marital asset subject to equitable distribution.


If you have questions concerning your Florida equitable distribution or property division rights, please contact an experienced Tampa family law attorney.


By Richard Mockler


Unrealistic Expectations in Divorce

Inappropriate expectations are part of everyday life.  Consumers buy products that are too small to do the job.  Businesses hire employees that lack relevant experience.  Travelers book bargain hotels expecting a four-star room.  In short, people frequently fail to understand what they should reasonably expect.

Expectations also run rampant in relationships.  Some men expect their wife to work full-time, look pretty, stay in shape, maintain the house, take care of the kids, do the laundry, have a nice dinner ready when he gets home, and then have enough energy left to wow him in the bedroom.  Some women expect men to earn lots of money, work extremely hard, be romantic, remind her of how beautiful she is, defer to her on all parenting and decorating decisions, never lose his temper, discard his friends, ignore his hobbies and interests, and enjoy watching Sweet November.  These expectations are at the root of many failed relationships.

My experience as a Tampa divorce attorney and Florida Supreme Court Certified Family Mediator has revealed that expectations are especially unrealistic in divorce.  These expectations are often built from consulting a network of family, friends, and co-workers who offer advice based on tall tales.  Women sometimes seek out and consult “divorce mavens” who they perceive were “successful” in their divorce.  The divorce maven is almost always willing to share her personal “success story,” which necessarily came at the expense of someone that she once loved.  In the “success story,” the stereotype is that the wife won full custody of the kids, she got the marital home, she was awarded long-term or permanent alimony, and the father was allowed to visit the kids every other weekend, except when she needed child care and allowed him additional time (but no Sunday nights, ever).  In some cases, the wife also received a domestic violence injunction or obtained an order subjecting the father to supervised visitation.

This paradigm of “success” in divorce creates unrealistic expectations in much the same way that photo-shopped pictures of skinny models with perfect skin create unrealistic expectations about how a woman should look.  And, the results of these expectations are similarly disappointing and destructive.  Unrealistic expectations in divorce create unnecessary conflict, increased attorneys’ fees, longer and more drawn-out cases, and risk.

Even in marriages with nearly equal income, some mothers will ask about their alimony rights, which they perceive are biologically-determined rather than based on the Florida alimony factors set forth in section 61.08, Florida Statutes.  Similarly, some women in short-term marriages have an expectation of alimony, even where the marriage was temporally equivalent to a serious high school relationship.

With respect to child custody disputes, many women still feel an absolute right to have “full custody” of the child, regardless of the father’s parenting skills, track record, kindness, or ability.  Today, with lawmakers and judges recognizing father’s rights, this sort of blind expectation is akin to expecting minorities to sit at the back of the bus.  Additionally, some mothers feel that child support is an absolute right, even where the parties’ incomes are equal, the father has substantial time-sharing with the children, and the father pays out-of-pocket expenses such as daycare and health insurance.

There are also predatory divorce lawyers who feed on these expectations.  This may come as a surprise to some attorneys, but married people – even those going through a divorce – frequently talk about the advise they receive from their lawyers.  And, if a party says, there is no way your lawyer told you that you will get everything in the divorce, the Wife might forward on the email from her attorney saying just that.  These attorneys perpetuate unrealistic expectations.  They also disappoint expectations in most of their cases.  But, they typically make a lot of money for both lawyers along the way.

If you couldn’t meet her expectations during the marriage, you probably won’t be able to meet them in the divorce.  You need an experienced advocate who will protect your legal rights.  You need a Tampa fathers rights attorney who will fight for you.  Please contact us at (813) 331-5699 to schedule a consultation.

By Richard J. Mockler