By firm partner Kenneth Rhoden, Esquire
If you own premarital property, and you want it to remain non-marital, you should have an ironclad prenuptial agreement. The recent Florida Supreme Court case of Hooker v. Hooker (SC16-589, Florida Supreme Court, opinion March 30, 2017) illustrates just how easy it is for non-marital property to become marital property.
In Hooker v. Hooker, the parties signed a prenuptial agreement that provided, upon dissolution of marriage, each party would retain their premarital assets and any appreciation of those assets. During the marriage, using his separate premarital assets, the husband purchased a summer home. Only the husband was on the title, note, and mortgage for the home. Normally, under F.S. 61.075 the home would be considered the husband’s separate non-marital property.
However the Florida Supreme Court found that because; the husband had sent the wife a card with a picture of the home for their tenth wedding anniversary, the wife purchased some furnishings and incidentals for the home with her separate funds, the wife had “unfettered” access to the home, and could incur expenses on behalf of the husband for the maintenance of the home that the husband had made a gift of the home to the wife. The husband testified that he had not intended to make a gift to the wife.
The husband did argue that the terms of the prenuptial agreement, and that only his separate non-marital funds were used for the purchase of the home, should make the home non-marital. The trial court, district court of appeal and Florida Supreme Court all ruled against the husband as to this property.
Florida Statute 61.075 provides that an interspousal gift during the marriage is a marital asset. The courts held, even on these shaky facts, that there was a, “clear and unmistakable”, intent that the husband made a gift to the wife. This ruling is good news for the spouse that did not own the asset before marriage and bad news for the spouse that does have premarital assets.
In many marriages one spouse owns a home before the marriage and the couple moves into the home. Of course the non-home owning spouse has “unfettered” access to the home and may purchase items for the home. An aggressive attorney will now challenge premarital property claiming a gift has been made.
One partial solution is for a strong, detailed prenuptial agreement to be prepared. It should clearly set out what needs to happen for an interspousal gift to be created – or not.
It is unfortunate that the courts and the legislature will not create clear rules that parties can easily follow. Until that happens you need to have an experienced, aggressive family law attorney.
Our firm has been serving the Space Coast of Florida for over 41 years. We have over 120 years of combined experience and are the largest and most experienced criminal and family law firm in Brevard County. Call or use the contact form today for a free consultation with one of our attorneys.