Florida Divorce Law: Is Post Separation Mortgage Equity Marital Property?

Being separated does not mean that marital funds that have been accumulated over the marriage cannot be used for mortgage payments, even if only one spouse occupies the home.

When post separation payments are made from income that has been accumulated following the separation, it is usually necessary to determine the date of classification to know if the equity from those payments is considered nonmarital or marital property once the divorce process begins.

The date of classification is the point in time when state law considers that you and your spouse are no longer acquiring marital property. It varies by state and can be:

The date of separation – states that classify by date of separation consider the equity earned by post separation mortgage payments to be classified as nonmarital property;

The date of filing – states that use the date of filing a divorce petition as the guideline consider the equity created by post separation mortgage payments to be marital property if it was earned before the date the petition was filed and nonmarital property if the income earned was after the date of filing.

The date of divorce – states that use the date of the divorce as the guideline consider the equity earned by post separation mortgage payments to be marital property.

Florida uses the Date of Petition for Dissolution as its guideline, so any equity earned by post separation mortgage payments will be considered marital property up to the date of filing, and nonmarital property after the date of filing. A Florida divorce attorney can provide you with more information about marital and nonmarital property status.