In a recent appeal to the State Supreme Court, the Court found that broad prenuptial language waiving a spouse’s right to any claims against the other spouse’s nonmarital property, even accrued interest or increases in value of that property, are waived. To understand a little better, one must look at how Florida law divides property in a divorce.
Equitable Distribution
When two people get divorced in Florida, the courts will divide all marital property “equitably,” meaning the court decides what is fair under the circumstances. This gives the court a lot of wiggle room in deciding who gets what, so to speak. However, the court generally will not divide nonmarital property.
Nonmarital Property
Nonmarital property constitutes the assets the parties own separately acquired from a non-marital source. This can be because one party inherited money, or it can be because of a gift from relatives. Likewise, separately owned real estate purchased before marriage or with non-marital assets ome, are also considered nonmarital property. If otherwise separate nonmarital assets increase in value due to only that one spouse’s efforts – perhaps an inheritance invested and maintained by one spouse only – then the increase is still nonmarital property. However, if the increase is at all due to both spouses’ efforts, then that increase in value is marital.
Finally, even a clear nonmarital asset, such as an inheritance, can become a marital asset, if it is commingled with marital property. In other words, if you inherit $100,000 and deposit it into your joint account and use it to pay your mortgage and other bills, then it becomes a marital asset, fully subject to division upon divorce.
Broad Language in a Prenuptial Agreement Can Protect Nonmarital Assets
In the recent Florida Supreme Court decision in Hahamovitch v. Hahamovitch, a 46-year-old man married a 26-year-old woman, and they divorced after 22 years of marriage. Prior to marriage, they signed a prenuptial agreement that expressly stated that both parties waived any claim to the separate assets of the other gained prior to the marriage. Therefore, the wife waived her interest in any of the husband’s nonmarital assets. However, the agreement was silent as to whether this included increases in value on that nonmarital property.
According to the Supreme Court, there is a complete waiver of the other spouse’s nonmarital property when the “prenuptial agreement’s actual language . . . expressly encompasses all property solely owned by one spouse presently and in the future.” Given this clear finding by the state’s highest court, it is wise to use clear and specific language to ensure a prenuptial agreement accomplishes everything it is intended to accomplish. Broad language will be interpreted literally. If you need a prenuptial agreement, you should consult with knowledgeable Orlando divorce lawyer Amy E. Goodblatt, who has years of experience in family law and who will create a prenuptial agreement that will achieve your goals.
Our attorneys, Amy E. Goodblatt and Tatiana Leo, have more than 55 years of combined legal experience. They are directly involved in each case and stay focused on the issues that matter most to you.
