calculating thE Marital sharE of non-Marital propErty
Marital & Family law Section
Chair:KatherineScott-Harris,Hunt&Derr,PA
the new statutory language
provides a formula to
replace kaaa for determining
the marital portion of
non-marital real property.
W
e’ve all faced this
question from a client
in a dissolution of
marriage who owns
real property acquired before the
marriage: “The marital residence?
It’s mine only — I bought it before
we got married and the deed is
in my name only. My wife is not
entitled to any of the equity, right?”
If the title was transferred to the
other spouse before or during the
marriage, then pursuant to Section
61.075(6)(a)2, Florida Statutes, the
presumption is that the property
becomes marital, and the entire
asset is subject to equitable
distribution. If, however, the deed
remains solely in the name of the
spouse who acquired the property,
then until recently, we would refer
to Kaaa v. Kaaa, 1 to assist in the
calculation of the marital share.
Effective July 1, 2018, the equitable
distribution statute was amended to
provide a formula to replace Kaaa. 2
The new language, in Section
61.075(6)(a)1.c, now includes in
the definition of marital assets the
principal paydown of a mortgage
secured by nonmarital property,
as well as a portion of any passive
appreciation, if marital funds were
used towards the mortgage. Already
included in the prior definition was
any increase in value due to active
appreciation. What’s new is the
formula for determining the marital
share of any passive appreciation.
The marital portion of non-
marital property is calculated
by adding all of the following:
1. The principal paydown of
the mortgage during the
marriage from marital funds;
2. Any active appreciation
of the property during the
marriage; and
3. The marital share of the passive
appreciation of the property.
The new language below assists
with the third component above.
To determine the marital share of
the passive appreciation, use these
six steps:
1. Calculate the paydown of the
mortgage: principal owed at
date of filing minus principal
owed on date of marriage.
2. Calculate the active
appreciation: value added
to the property during the
marriage because of remodels,
additions, or enhancements
paid by marital funds/labor.
3. Calculate the passive
appreciation by subtracting
the value of the property on
the date of the marriage (or
a later date) from the value
on the date of filing (or other
valuation date), minus any
active appreciation and any
other notes taken during
the marriage.
4. Apply the coverture fraction:
The numerator is the
mortgage paydown and the
denominator is the value
on the date of marriage.
5. Multiply the coverture fraction
by the passive appreciation
to get the marital share of
the passive appreciation.
6. Add the marital share of
the passive appreciation to
the mortgage paydown to
get the total marital share.
It may be wise to request
mortgage statements from the date
of marriage and the date of filing,
remodels or additions during the
marriage, and any notes taken
during the marriage. It may also
be helpful to retain an appraiser to
value the property on the date of
marriage and the date of filing. n
58. So.3d
867 (Fla. 2010).
2 See Ch.
2018-56, §1-2,
Laws of Fla.
1
Author:
Lara G. Davis -
The Women’s
Law Group, PL
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