How Can Property Become Commingled?
Florida is an equitable distribution state, which means that all marital property must be split equitably, but not necessarily equally, between spouses. What is identified as marital property can have a substantial impact on your ultimate divorce settlement. In many cases, someone’s pre-marital property/separate property is an issue in the divorce. The issue often comes down to whether specific pre-marital property has remained separate or become commingled during the marriage. Commingled property is considered marital property during a divorce and must be split equitably between spouses. For more information about what might be seen as commingled property in your divorce, call or contact the Law Offices of David L. Hirschberg in Boca Raton today for an opinion on your case.
How is Property Commingled?
All property that is acquired prior to the marriage, is given as a gift to one spouse during the marriage, and inheritance is seen under Florida law as separate property. This property returns back to the owner in a divorce. However, if separate property is used in certain ways during the marriage, the court may consider it commingled property, and therefore subject to equitable distribution in a divorce. There are three ways that the Florida courts recognize separate property turning into commingled property in a marriage.
Under the strict transmutation approach, if a couple mixes marital and nonmarital funds, the nonmarital funds automatically become commingled. Money is considered fungible, and as such it loses its status as separate property. The court typically does not consider any other factors if commingled property occurs under the strict transmutation method. An example of strict transmutation is if one spouse sells separate property and places the money from the sale into a joint account that both spouses use.
Under the tracing approach, a spouse may be able to claim some part of commingled property as separate property in a divorce. If an element of the commingled property can be traced back to when it was separate property, the value may be allotted to that spouse as separate property. An example of the tracing approach is when one spouse purchases a home prior to the marriage and can prove by tracing how much equity was invested in the home prior to marital funds maintaining the property.
Intent of the Parties
The final approach looks at the intent of the parties. The most common use of this approach occurs when an inheritance is involved in a divorce. The courts will look at the intent of the spouse to see whether the value of the inheritance should be considered as separate or commingled property. If the spouse who inherited kept the money in a separate account, it will probably be considered separate property in a divorce. However, if the inheritance was used for marital projects, expenses, and purposes it could be considered commingled funds.
Talk to Our Office Now
If you need assistance determining what property may be seen as commingled in your Florida divorce, contact a Boca Raton divorce attorney at the Law Offices of David L. Hirschberg to schedule a free consultation with an attorney.