How to Keep Money Separate During a Divorce

In Florida, marital property is considered that which was acquired during the marriage, whether cash in a bank or savings account, a home, vacation property, 401(k), boats, jewelry, or anything of value acquired during the years the couple was married. Debt acquired during the marriage may also be subject to division. 

It doesn’t matter if one person had a salary supporting the family while the other took responsibility for the children. All are considered contributions to a marriage subject to an equitable division.

It also doesn’t matter whose name is on the account. Marital property is divisible during a Florida divorce if acquired during the marriage.

According to AARP, the divorce rate among couples aged 50 and older has doubled in recent decades, meaning there is potentially a lifetime of earnings and assets to divide in a Florida divorce.

There are exceptions to asset ownership that protect assets for a single individual, even during their marriage, and cannot be divided. Some individuals plan to protect their assets, even during the marriage. 

Keeping Money Separate

An equitable property division is subjective, so even if you have kept money separate in preparation for a divorce, your divorcing spouse could be entitled to some of those funds. 

Equitable essentially means fair. The court will consider the contribution of both individuals to the marriage. Just because you were the sole breadwinner doesn’t mean you get to keep the funds all for yourself.  

Co-mingling Funds – If the assets were in a joint account, that may be subject to division in a Florida divorce. If the commingling of funds has occurred, even if the money represents, for example, an inheritance, proceeds from a real estate transaction, or a salary, those dollars are no longer considered separate property.

Separate Funds – Other times, couples decide early on, even before they get married, to retain ownership of certain monies. Say the couple is older and they have accrued funds during their lifetime; those earnings and the proceeds of any business or property sale owned by one partner before the marriage can be kept in a separate account that is not subject to division.

Separating funds does not have to be a controversial move. Sometimes, a person may want their children from a prior marriage to inherit certain valuables. If the money is co-mingled, it makes dividing those monies for one’s children more difficult.  

Suppose the money, such as an inheritance or dollars earned before the marriage, was kept in separate accounts. In that case, it is not considered marital property under Florida law; it is not subject to equitable division.

It then would be easier to direct those assets to one partner’s children.
Prenuptial Agreement – The other time when funds earned during a marriage are not subject to division is if there is a prenuptial agreement. In that case, both partners had to seek separate counsel and sign off on the prenuptial agreement before marriage. These agreements can later be challenged if one partner feels pressured into signing, but generally, a prenup is difficult to overturn.

When a divorce is pending, the couple could negotiate and sign a post-nuptial agreement to specify how funds should be divided. The agreement will require a complete, honest disclosure to be valid.

Your Florida Family Law Attorney

Once you decide to divorce, there are a couple of avenues you can choose to separate assets. Mediation is a process in which the couple decides, with the assistance of a neutral, third-party mediator, how they want to divide assets and share responsibilities, such as children, in the future.

In some cases, mediation is not a viable option. In particular, divorcing spouses who have a contentious relationship and are prone to conflict might not be able to resolve their issues through mediation. When this happens, then these issues are usually settled through negotiation or litigation.

Crystal Collins Spencer has been helping individuals through their divorce for more than 30 years, representing petitioners and respondents in Florida divorce cases.

Crystal Collins Spencer, Attorney at Law, will offer you a consultation on your case with offices in Fort Walton Beach, Pensacola, and Sandestin. Contact her office to make an appointment so you can review your options.

Sources:

AARP
https://www.aarp.org/money/investing/info-05-2012/protect-money-in-divorce.html

Investopedia
https://www.investopedia.com/articles/retirement/072916/how-protect-your-pension-divorce.asp