Legal Memorandum: Equitable Distribution of Marital Assets

Issue: Under Florida law, will an increase in value of nonmartial property used to fund an irrevocable trust and limited partnership interest be treated as marital property subject to equitable division in a divorce?

Non-marital assets for the purpose of divorce include “assets acquired . . . by either party prior to the marriage, and assets acquired . . . in exchange for such assets.”  Fla. Stat. § 61.075(5)(b)(1).  To the extent that a partnership interest was obtained through the exchange of assets that were acquired prior to the marriage, the value of the pre-marital asset is not marital property.  However, marital property will include “the enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure . . . of marital funds or other forms of marital assets, or both.”  Id. § 61.075(5)(a)(2).  A spouse will have the burden of showing that marital funds or effort were used to enhance the value of the asset.  See Barner v. Barner, 716 So. 2d 795, 797 (Fla. App. 4 Dist. 1998) (quoting Oldham v. Oldham, 683 So. 2d 579, 580 (Fla. App. 4 Dist. 1996)).  If the spouse can show that marital effort or funds have been used to enhance the value of the asset, the court must determine what portion of the increased value is the result of such marital resources.  See Sanders v. Sanders, 547 So. 2d 1014, 1016 (Fla. App. 1 Dist 1989).  The burden will lie on the party claiming that only a portion of the increased value is attributable to marital effort or funds.  Young v. Young, 606 So. 2d 1267, 1270 (Fla. […]