Interspousal Gifts and Equitable Distribution of Property in Florida

In the US, the states generally determine the rules and procedures which govern marital issues such as marriage, divorce, child custody, alimony, and marital/non-marital property distribution. In some states, when there is a divorce, the property is called “community property,” which provides that regardless of who acquires what during the marriage, and absent a premarital agreement, the property is divided 50-50. Florida, among other states, is an equitable distribution state, which preferences who brought what into the marriage and then attempts to divide the assets between the couple in a fair and equitable manner.

If you and your partner are considering a divorce and want to know more about Florida’s equitable distribution requirements, it is important to speak with an experienced family law attorney.

Equitable Distribution Among States

The rules of equitable distribution differ among the states and the formula used in Florida may be different from the rules of another state. However, the rules are constantly changing and are being evaluated to determine, as our society changes, what fairness looks like when it comes time to divide property between spouses.

Interspousal Gifts in Florida and the Effect of Prenuptial Agreements

In a recent ruling, the Florida Supreme Court analyzed the tenets of equitable distribution to determine how interspousal gifts are affected in dissolution of marriage, and in particular when there are prenuptial agreements involved. Prenuptial agreements are permissible legal documents in Florida, and permit that barring any adjustments or modifications, they may rule the extent in which the property acquired before marriage (and after marriage) may be considered one party or another’s. Prenuptial (and post-nuptial agreements) can help determine at the time of marriage, whether the couple intends, at the time of divorce, to distribute the property based on ownership (and its relationship to the marriage), as well as, any financial incentives for particular behavior, such as an infidelity clause. Infidelity clauses can dictate that the cheating spouse either loses money that he/she would be otherwise entitled to as a result of the dissolution of marriage, or that the cheating spouse must pay the other spouse as part of damages resulting from the infidelity.

The Appropriate Standard of Review of Interspousal Gifts

The Florida Supreme Court evaluated in the present case the appropriate standard of review for the appellate court in determining whether a spouse has a donative intent when establishing that property is an interspousal gift and therefore, should be considered a marital asset, subject to equitable distribution. Though title to the asset can be indicative of ownership, it does not bar the asset from being marital property.

Elements for Proving that an Asset is an Interspousal Gift

To prove that an asset is an interspousal gift, the burden is on the spouse looking to benefit from the marital asset that he/she may not necessarily have title to but believes that he/she has ownership rights pursuant to the marriage. It must be proven that there was:

  • Donative intent;
  • Delivery or possession of the gift; and
  • Dominion and control of the gift is surrendered to the beneficiary spouse.
Other Factors Dispositive of an Interspousal Gift

To determine that an asset is an interspousal gift, it must be proven by the standard of review of competent, substantial evidence. Where real estate property is at issue, the main evidence that can be dispositive that the property was an interspousal gift looks to the role of the non-titled spouse in the appreciation of the value of the property. If the non-titled spouse was on the mortgage, if he/she considered the property her home, if he/she was involved in the design, construction, or décor of the property, if he/she had unfettered access to the property, was able to move freely, independently, and was able to reside, maintain, and improve the property, and the other titled spouse passively permitted or even encouraged these actions, then the property should be considered interspousal and therefore marital property. This evidence supports the view that the asset was marital property, regardless of what the prenuptial agreement might have stated regarding premarital property and the fact that premarital money was used to purchase property during the course of the marriage.

Please contact West Palm Beach family law attorney William Wallshein for a confidential consultation.