(407) 757-2883
Section 61.075(6)(b) of the Florida Statutes defines a non-marital asset as one acquired separately by either party by non-interspousal gift, as well as assets acquired in exchange for such assets.
To lose its non-marital classification, funds at issue must (1) have been commingled, (2) become untraceable (i.e. “incapable of being specifically identified as the earlier separate property” – Archer v. Archer, 712 So. 2d 1198, 1199 (Fla. 5th DCA 1998)), and (3) been intended as a gift.. See Van Den Berg v. Van Den Berg, 49 So. 3d 283, 285 (Fla. 5th DCA 2010)(“Non-marital assets lose their character if the asset itself becomes commingled and untraceable.”)(emphasis added); see also Williams v. Williams, 686 So. 2d 805 (Fla. 4th DCA 1997)(noting that a non-marital asset becomes marital after being commingled with marital assets, becoming untraceable as a result, and after a party’s failure to meet his/her burden of showing that no gift of the non-marital asset was intended).
Most of the cases you read on “commingling” are VERY distinguishable. All of them discuss commingled money as losing its separate character and becoming untraceable because the funds were placed into a marital account – often joint – for a significant period of time, during which the parties withdraw the funds for marital expenses. See, e.g., Tunderman v. Lee, 585 So. 2d 354 (Fla. 2d DCA 1991)(finding that money received by husband from his father and aunt was marital because the funds were commingled in the parties’ joint account for periods of time, properties were purchased with the funds and placed in joint names, and the parties used the funds to maintain their marital lifestyle); and Link v. Link, 897 So. 2d 533, 536 (Fla. 5th DCA 2005)(finding that account acquired from wife’s mother lost its non-marital character because the wife changed the account to a joint account, deposited her paychecks into the account, withdrew monies from the account to pay marital expenses, and also permitted the husband to write checks from the account).
See also Archer – “In the instant case, the former husband testified that certain of the assets in the joint CMA account were specifically identifiable, could be traced back to their origin from the former wife’s mother, and had remained unchanged since the former wife acquired the interest in them. In our view, those circumstances do not create a presumption of a gift in the entire CMA account. Once the former wife demonstrated that certain specific, identifiable assets within the joint CMA account originated as her separate non-marital property, and never became commingled or otherwise untraceable, it became the burden of the former husband to prove, as to those assets, that the former wife intended to make a gift to him of one-half of them. The creation and maintenance of a joint tenancy in personal property is not enough to establish the presumption that a gift was thereby intended.” (emphasis added).