Matthew Lane & Associates, P.A.

Division of Property and Assets in Wellington, FL

With respect to a division of property and assets, where a party inherits assets and they are placed into an account where they are commingled and are not traceable, it is presumed that a gift is intended and they are considered to be a marital asset. In Sorgen v. Sorgen the Florida court of Appeal recently stated: "We agree with the husband's argument that, because the proceeds from the sale of the home ultimately were commingled into the parties' joint account, the wife's one-third interest in the proceeds from the sale of the home became a marital asset subject to equitable distribution. 'In evaluating assets that come to one spouse by inheritance, the task for the trial court in a dissolution proceeding is to determine whether the recipient intended that the assets remain non-marital or whether the recipient's conduct during the marriage gives rise to the presumption of a gift to the other spouse." Lakin v. Lakin, 901 So. 2d 186,190 (Fla. 4th DCA 2005).

A party may show intent to keep an asset nonmarital if "the non-marital property is placed into a separate account, no other funds are deposited into it, and the account is never intermingled with the parties' other funds." Id. (citation omitted). However, "[w]hen one spouse deposits funds into a joint account where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds." Williams v. Williams, 686 So. 2d 805, 808 (Fla. 4th DCA 1997) (citation omitted). The spouse seeking to have the property declared a nonmarital asset 'has the burden of overcoming this presumption by proving that a gift was not intended... Robertson v. Robertson, 593 So. 2d 491, 494 (Fla. 1991); see also §61.075(6)(a)3.,Fla. Stat. (2008) ('All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.'). 'The burden of proof to overcome the gift presumption [is] by clear and convincing evidence.' § 61.075(6)(a)4., Fla. Stat. (2008)."

To speak with a divorce attorney in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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