Asset & Debt Characterization

Understanding the Difference Between Marital and Separate Property

In general, property or indebtedness acquired before marriage will be considered separate, while anything acquired during the marriage will be considered marital assets or liabilities subject to division in divorce. There are some important exceptions, however. Assets acquired by gift or inheritance during the marriage will generally be separate property. The terms of a prenuptial agreement can also change the character of an asset or debt from marital to separate, or vice versa.

Characterization issues are most difficult when a premarital asset appreciates in value during the marriage, the gift status of a particular asset is unclear, marital property is used to reduce a spouse’s premarital debt, or the terms of a pension account or executive compensation package defer vesting to a point after the divorce, while accruing rights during the marriage.

Experience Resolving Complex Property Division Issues

Our experience with complex characterization issues can represent an important advantage for people who need to deal with such assets or liabilities as Florida state retirement plans, military pensions, debts remaining from a prior marriage, refinanced business debts like personal guaranties or pledges, or even equity in a marital residence purchased by one of the spouses before marriage. Certain industries, such as airlines, have notoriously complex retirement benefit structures, and our lawyers can help you understand your rights with respect to their character for equitable distribution purposes.

At Moraitis & Raimondi, LLP, our divorce attorneys pay close attention to the details of any asset or debt characterization issue so that our clients can protect property that should not be subject to division in divorce, and pay no more than their fair share of the marital liabilities. Knowing just what is and isn’t included in the marital estate is essential to satisfactory property settlement outcomes.

Questions as to whether a particular asset or debt is marital, separate or something in between are called characterization issues, and your lawyers will need to examine your situation carefully to develop an accurate idea of your marital estate’s composition.