As far as a technical definition it is likely nonmarital; however, any increase in value is likely considered a marital asset.

Earlier this year the Second District Court of Appeal, which is the appeals court for our local courts in Fort Myers and Naples, decided a case involving a family business started prior the marriage.  Specifically, the Husband started a corporation which he was the sole shareholder prior to his marriage.  After marrying, he moved to Florida and reincorporated the business.  The trial court found this action made the corporation marital property.  However, the Second District Court of Appeal, relying on previous precedent, found it was nonmarital property.  

The court found that under Florida Statue § 61.075 the property was acquired from assets held prior to marriage.  Thus the business was properly considered nonmarital property. The Husband had transferred a percentage of this company to his Wife during the marriage.  This transfer was properly considered marital property under Florida Statue § 61.075.  Additionally, because marital labor and resources were put into the business, any increase in value was properly considered marital property subject to equitable distribution.

Since the court reversed a portion of the equitable distribution award it necessitated review of the alimony and attorney’s fees award by the trial court on remand.  Alimony and attorney’s fees are based on a need by one spouse and the ability to pay by the other spouse.  If there is a substantial equitable distribution, it is possible that there will not be the need for alimony or attorney’s fees.  However, if a substantial distribution is reduced on appeal, it is likely that the alimony and attorney’s fees also be adjusted.

See Orloff v. Orloff, 36 Fla. L. Weekly D643 (Fla. 2d DCA 2011).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Generally speaking it is, IF any part of the pension was earned during the marriage.  Specifically, even if one earned only a small percentage of their pension during the marriage it is subject to equitable distribution.

A recent South Florida case dealt with this very issue.  A Husband earned the majority of his pension outside of the marriage.  However, the trial court failed to determine how much, if any, of the pension was a marital asset subject to Equitable Distribution.  Since the trial court did not make any determination as to the marital status of the pension as required by Florida Statute § 61.075(3), the Fifth District Court of Appeal found this to be reversible error. 

It is important to understand that in cases like this it is likely that only the percentage earned during the marriage would be considered a marital asset and the rest would be considered nonmarital.  Thus even though a portion was subject to equitable distribution, it is likely that the vast majority of the pension would have been considered nonmarital and not subject to divide. 

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in a the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.