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Protecting separate property during a marriage

Inheritances and gifts are generally considered separate property when obtained while married, but there are exceptions. Any assets or debt deemed marital property are subject to division in a divorce. Although not expressively required, Florida law encourages an equal distribution of property. This might mean a fifty fifty split or what a judge decides is fair. To prevent one's spouse from claiming a share of an inheritance, spouses need to follow some rules.

A major mistake that would turn an inheritance or a gift into marital property is commingling. Depositing a check written to one person in a joint checking account is a simple example of commingling funds. Cash, interest payments, checks and any other income derived as a gift or from a gift must be kept in a separate account. This income must not be used to buy things for the couple either. One potential problem that sometimes comes up in a divorce is one spouse claiming that gifts given to their ex-partner were actually loans, which are not considered separate property. To prevent disagreements, people should keep written records of gifts and loans, both given and received, during their marriage.

Gifts and inheritances are not the only type of separate property. Any property people own before they marry or that they buy after being legally separated, in some cases, is separate property. Assets designated as separate property in marital agreements, including pre-nups and post-nups, and compensation received from a personal injury lawsuit are separate property as well.

No matter how much people want them to, marriages do not always work out, and people need to protect themselves from that possibility. An attorney could be of assistance by drawing up prenuptial or post-nuptial agreements before a divorce takes place. If divorce is inevitable, an attorney could advice clients on creating an inventory of their separate and marital assets and then developing a strategy to get the best divorce agreement possible.

Source: Forbes, "Divorcing Women: Here's How to Protect Your Inheritances And Gifts", Jeff Landers, August 19, 2014

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