When you hear the phrase “marital gift,” it may call to mind poring over an engaged couple’s wedding registry to select just the right item (or items,) or perhaps bring back memories of sending out dozens (or even hundreds) or thank-you notes for the things you received at your own wedding.
What you may not know is that, in Florida law, “marital gift” has another meaning, and this other meaning may have a major effect on the division of your assets in the event of a divorce. Under this “marital gift” legal concept, it is possible for a non-marital asset to become part of your marital estate subject to equitable distribution in your divorce. What this should remind you is that divorce law is full of many subtleties, nuances and concepts probably unknown by even knowledgeable non-lawyers. That’s why, if you’re going through a divorce here in the Sunshine State, you need the experience of a skilled South Florida family law attorney on your side.
A recent case of a Brevard County couple is an example of divorce where a “marital gift” mattered a great deal. In the case, the couple had a marital home that was purchased with a mortgage and an $80,000 down payment. The $80,000 for the down payment came from a gratuity given to the husband by a former employer, as a “thank you” for services he had performed prior to the husband’s marrying the wife.
On the surface, then, it might seem like the $80,000 was the husband’s separate property and that he was entitled to have it treated in that way in the divorce. However, the husband had a problem. When he and the wife purchased the home, the home was deeded to them as a “tenancy by the entirety.” (That’s a term of property law that means a special form of ownership only available to a married couple and that treats the couple as a single unit.)
The non-marital down payment became marital because it was presumed to be a gift
That was a big problem for the husband because, by the time of the divorce, the $80,000 down payment was treated as a part of the marital home asset and Florida law says that any asset held as a tenancy by the entirety is legally presumed to be a marital asset in a divorce. That wording “presumed to be” is very important, because it means that the court will assume something to be true unless the opposing party specifically proves that it is not true.
For this husband, that meant that the entirety of the marital home, including the $80,000 down payment was presumed to be a marital asset unless the husband had the right kind of proof to demonstrate otherwise. To do that, you need evidence that shows persuasively that “no gift to the other party was intended.” You can’t just show that you used non-marital assets to purchase a home, you need something much more – like proof that the home was actually owned by you alone and not by you and your spouse as a couple. This husband didn’t have that, and so he lost his appeal.
A prenuptial agreement possibly could have helped this husband
In this husband’s case, part of the problem was a failure to plan until it was too late. No one likes to think about divorce in the weeks and months preceding a wedding, but divorce is unfortunately a reality for a lot of couples who marry. Proper planning with documents like a pre-nuptial agreement may help some spouses avoid being tripped up, and losing out, due to equitable distribution rules (like presumptions) that would work against them in a divorce where there was no prenuptial agreement.
Whether you need pre-marriage services like a prenuptial agreement or post-marriage services like settling an equitable distribution matter, the skillful South Florida family law attorneys at Sandy T. Fox, P.A. are here to assist. Our attorneys have been providing diligent advocacy in a wide array of family law cases, including equitable distribution actions, for many years. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.