The division of property and assets in a Florida divorce begins with the division of the parties’ assets into two categories, marital assets and liabilities and nonmarital assets and liabilities. Marital assets are those assets accumulated during the marriage by the parties from their work, earnings and services. In determining whether property is a marital asset, the question is not which party holds title to the asset. The trial court divides the marital assets and liabilities between the parties. In a recently decided case captioned Hooker v. Hooker, the Florida Supreme Court stated that although the trial judge possesses discretion to reach an equitable distribution of the parties’ marital assets, there is a presumption that an even division is equitable, unless one of the parties shows otherwise.
Gifts made between the parties during the course of the marriage are marital assets. In order for one spouse to prove that a gift was made during the course of the marriage the recipient must prove: (i) a donative intent, (ii) possession or delivery of the property, and (iii) surrender of control and dominion over the property. In other words, a gift is made when a spouse intends to make a gift, the gift is given to the other party, and the donor relinquishes possession and control over the property. Where the evidence shows that an a gift was made, the property is then subject to distribution as a marital asset.