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Special equity and unequal distribution of assets.

Special Equity" v. "Unequal Distribution." What do these two terms mean today?Andhow, if at all, are they related?

The unequal distribution of marital assets is not often ordered by Florida courts. Although marital assets are presumed to be equally divided, this is just a starting point in the search for equity in dividing assets acquired during a marriage. Special equity is a concept that seemingly illustrates a justification for unequal distribution, i.e., services or contributions over and above normal marital contributions. However, with the advent of the equitable distribution statute in 1989, a simple request for an unequal distribution of marital assets is more clear and in line with the definition set forth in the statute.

First used in 1932, in the case of Heath v. Heath, 103 Fla. 1071, 138 So. 796 (Fla. 1932), the term "special equity" was initially a judicially proferred term, created to circumvent the harsh statutory rule which prohibited any form of alimony award to an adulterous wife. (1) That meaning has metamorphasized. The Florida Supreme Court in 1980 defined special equity, in its purest sense, as "a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties." Duncan v. Duncan, 379 So. 2d 949, 952 (Fla. 1980). (2)

Rendered simultaneously with Duncan was the landmark Florida Supreme Court case, Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). Explaining that historically there were two types of special equity, the Canakaris court clearly approved one form, but refuted the use of the term "special equity" for the other. The court determined that special equity was inappropriately used when considering lump sum alimony. The court opined that because this use of the term "lump sum alimony" did not actually characterize a vested interest by a spouse, but rather was used to ensure a fair result, it did not accurately convey the true meaning of special equity.

Conversely, the Canakaris court did embrace the more traditional definition of special equity, which describes a vested interest in either marital property or the nonmarital property of the other spouse because of the contribution of funds or services over and above normal marital duties. (3)

The Equitable Distribution Statute--Two Presumptions

Directly resulting from F.S. [section] 61.075, the equitable distribution statute, are two presumptions which too often are taken as absolutes. The first is the presumption that, after a solely titled nonmarital home is placed into joint names, whereby the husband and the wife become owners as tenants by the entirety, that home is marital. See F.S. [section] 61.075(5)(a)5. At that point in time, the burden shifts to the original owner spouse to prove that a gift was not intended. This presumption seems to be almost irrebuttable in light of the case law of the past 12 years.

The second critical presumption is that marital property shall be distributed equally. However, a presumption of equal distribution is just a starting point. This very same statue also contains factors for distributing assets unequally. (4) "(j) Any other factors necessary to do equity and justice between the parties." If one party has contributed funds or services over and above the normal marital expectations and duties, or if a transmutation has occurred through commingling of a separate asset with a marital one, then the best remedy to ensure a fair result is to recognize that contribution, not by calling it a special equity, but rather by an unequal distribution of the marital assets.

Special Equity

The burden of proof for a special equity claim is two-fold. First, the party claiming a special equity must prove the funds or property came from a nonmarital source, and second that a gift was not intended. (5) The burden to show a special equity is upon the party claiming it. (6)

The key to determining which portion of a separate asset remains nonmarital often is whether the funds remain traceable. If funds become so commingled within marital funds or assets that they lose there original characteristics, no special equity will be granted. In other words, separate property is transmuted into marital property. In Bashem v. Bashem, 541 So. 2d 118 (Fla. 3d DCA 1989), the Third District was presented with this issue. The wife in this case was appealing a decision by the trial court that refused to give her credit for funds that she brought into the marriage. She had placed the separate funds into the parties' joint accounts and the funds were then utilized to pay for many of the parties' expenses throughout the marriage. The trial court had awarded special equities to certain other assets such as real estate and stocks, which were not placed in joint accounts. As to the funds placed in joint accounts, however, the court held that because the funds were commingled and not traceable, they had lost their nonmarital character and were transformed into a marital asset.

Nearly 10 years later, the Fifth District in Archer v. Archer, 712 So. 2d 1198 (Fla. 5th DCA 1998), confirmed that tracing is still used by the courts to determine the characterization of assets. In that case, the wife owned certain assets with her mother: real property as joint tenants with rights of survivorship and a cash management account. When her mother passed away, the wife acquired title to these assets. She placed the house in joint names with her husband as tenants by the entireties, and commingled many of the funds from the bank account with marital funds in the parties' joint accounts. The court held that there was a presumption of a gift of the marital home. To the extent that the funds in the bank account became so commingled with joint funds as to lose their capability of being specifically identified as the earlier separate property, no special equity was awarded. However, some of the wife's original assets remained traceable, in that stocks held by her before being placed in a joint account were still intact, save only the transfer into joint names with the husband. Accordingly, the burden then shifted to the husband to prove that the wife intended to gift them to him. Unable to establish the wife's donative intent, the husband failed to carry this burden and the wife retained the traceable property, which was characterized in this case as a special equity.

As Archer indicated, a dichotomy exists between the treatment of personal property and the treatment of real property. By statute, while there is no presumption of a gift for personal property, there is, conversely, a strong presumption of a gift for entireties property. Historically, this was not the case. In fact, just a quarter of a century ago a distinction was drawn between situations where the contributing spouse furnished all of the consideration for the entireties property and where the contributing spouse furnished only some of the consideration. In 1976, in Ball v. Ball, 335 So. 2d 5 (Fla. 1976), the Florida Supreme Court explained the state of the law at that time as it pertained to property where one spouse furnished all the consideration. "In these cases, the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended." In other words, the burden was on the nonowner spouse to prove that a gift was intended.

The equitable distribution statute, promulgated in 1989, turned this principle on its head. Today, there is a presumption of a gift for entireties property, even if one spouse provided every penny of consideration for its purchase. The burden has been shifted to the original owner spouse to prove that a gift was not intended. The Supreme Court in Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991) explained:

As we read it, [section] 61.075(3)(a) 5 preempted the principle established in Ball. Under Ball, despite the fact that property was held as tenants by the entireties, when a spouse demonstrated that he or she had paid for the property from a source unconnected with the marriage, that spouse was entitled to a special equity in the property unless the other spouse could prove that a gift was intended. In contrast, the statute creates a presumption that entireties real estate is marital property regardless of who paid for it. The party claiming a special equity and seeking to have the property declared a nonmarital asset now has the burden of overcoming this presumption by proving that a gift was not intended. (7)

What is the standard of proof for a party who is claiming that the entireties property is nonmarital? The Fourth District Court of Appeals in Heim v. Heim, 712 So. 2d 1238 (Fla. 4th DCA 1998), explained that the standard of proof is the "greater weight of the evidence and not beyond a reasonable doubt." However, even with this lower standard of proof, the presumption, which remains one of the strongest in family law today, is very difficult to overcome. (8)

In fact, this presumption is so strong that there appears to be only one case to date where the presumption was overcome. In Hill v. Hill, 675 So. 2d 168 (Fla. 5th DCA 1996), the husband testified that he placed the home in joint names for estate planning purposes, never intending to make a gift to the wife. However, in this case the wife agreed that this was the reason for the joint ownership. Compare Hill to the facts in Rutland v. Rutland, 652 So. 2d 404 (Fla. 5th DCA 1995). Rutland was heard in the same appellate court as Hill and only one year prior. Like the husband in Hill, the husband in Rutland testified that he placed the marital home in joint names for estate planning purposes. Not only did the Fifth District deny the husband's claim that the home was nonmarital and presume that he had given it to the wife as a gift, but the court went on to criticize the husband's statements as "self serving."

So, where does Landay v. Landay, 429 So. 2d 1197 (Fla. 1983), fit into this picture after Robertson? The answer is a resounding "It doesn't!" In Landay, the court promulgated an equation which was to be used when a spouse furnished some, but not all, of the consideration for entireties property. (9) Nineteen cases cite to Landay after Robertson, but none use the formula set forth in Landay correctly, if it is applied at all. (10) For example, in Gallinar v. Gallinar, 763 So. 2d 447 (Fla. 3d DCA 2000), the husband argued that the trial court erred when it failed to award him a special equity in the marital home. The appellate court commented that while it was quite evident the husband had contributed substantial nonmarital funds to the home, he still failed to rebut the presumption of a gift and therefore Landay was not necessary because there was no special equity.

The Landay formula was used to determine a nonmarital component of marital real property. This must be distinguished from the formula propounded in Stefanowitz v. Stefanowitz, 586 So. 2d 460 (Fla. 1st DCA 1991), which is used to determine a marital component of a nonmarital asset.

Unequal Distribution

F.S. [section] 61.075 (1989) states that "[i]n a proceeding for dissolution of marriage, in addition to all other [equitable] remedies ... the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distributions should be equal, unless there is justification for an unequal distribution based on all relevant factors...." (11) In other words, once the marital portion of the pie has been defined, the court, beginning with the presumption that the marital assets will be equally divided, must then determine, after looking at all of the factors in the statute, whether an equal division will result in an equitable decision. Hence, the term "equitable distribution," not "equal distribution."

At some point in our recent judicial history, the marital gift presumption for real property has become confused with the presumption of equal distribution. Theoretically, the solution used to rectify an inequitable situation where one party titles a separate asset in joint names and feels that an inequitable situation has been inadvertently created, is to identify jointly held property as marital and then request an unequal division. Since 1989, there are only two cases where a court has found the parties' situation to be egregious enough to merit the award of an unequal division where one party has gifted nonmarital real estate to the other party.

In the first case, Ibanez-Vogelsang v. Vogelsang, 601 So. 2d 1303 (Fla. 3d DCA 1992), the parties were married for six weeks. On the parties' wedding day, the husband placed a $900,000 home into joint names. The wife was a self-employed, financially independent professional, but still received a $35,000 ring, $16,000 in rehabilitative alimony, and $26,000 in attorneys' fees. The home, on the other hand, was distributed entirely to the husband.

One year after Vogelsang, in McMonagle v. McMonagle, 617 So. 2d 373 (Fla. 5th DCA 1993), the Fifth District Court of Appeals was also asked to make an unequal division. In that case, the parties, who were both 56 years old, were married for less than two years. Neither party contributed to the wealth of the other as virtually all assets were acquired prior to the marriage. While the wife did not place anything in both parties' names, the husband did title his premarital home jointly. The trial court divided all of the assets right down the middle. The husband appealed arguing that the decree was inequitable because the wife more than doubled her assets and conversely the husband's were cut in half. The appellate court agreed opining that while there is a presumption of a 50-50 split, that is simply a starting point.

The presumption of an equal distribution of assets is so difficult to overcome that there are only two cases in this area. (12) In Vaughn v. Vaughn, 714 So. 2d 632 (Fla. 1st DCA 1998), the court determined that the facts of the case merited an unequal distribution because the parties were married for less than two years. And in the second case, Escudero v. Escudero, 739 So. 2d 688 (Fla. 5th DCA 1999), the court deemed an unequal distribution to be justified because the husband's dissipation and concealment of assets warranted it.

Conclusion

Special equity is an antiquated term that is like a man without a country in family law today. Though the statute continues to keep the term alive, it is used in a vague and misleading manner in recent case law. With personal property, the term should not be used; one should simply define what is marital property and what is nonmarital property. Furthermore, Robertson and Chapter 61.075 have created a seemingly irrebuttable presumption of gift in jointly titled real estate, regardless of who provided the consideration for the home and regardless if the consideration was total or partial. Therefore, while the term "special equity" is used in many reported cases since promulgation of the equitable distribution statute in 1989, the term today is really synonymous with the term "unequal distribution." (A chart of cases where the courts have considered special equity claims since Ball v. Ball was decided in 1976 is attached hereto to aid the reader.) Put another way, a request for special equity is really a request for an unequal distribution of marital assets or a determination that the property in question is nonmarital.

Family law practitioners should first determine whether an asset and the appreciation thereon is marital, nonmarital, or some combination of both. Second, look at whether the presumptions of gift apply through title to real estate or commingling of assets. Third, determine whether an argument for unequal distribution of a marital asset is appropriate. A thorough and thoughtful application of the criteria and definitions set forth in F.S. [section] 61.075 support this reasoning, akin to past efforts of practitioners and courts to establish special equities in assets.

(1) In that case, the wife was observed by her husband lying on the conjugal bed, clothed only in her underwear and a sheer bathrobe, with a former male employee who was sans coat and shoes. Even though the wife had substantially contributed her own capital and personal services into the husband's chain of stores, the courts at that time could not grant alimony to an adulterous wife. So, instead, that court decided that that rule did not preclude an award to the wife in the form of a "special equity" in property and the business of the husband, in recognition for her material contributions in the form of funds and industry during the marriage.

(2) Furthermore, the Supreme Court remarked in Duncan that if a court finds a special equity, it should find that one party indeed has a vested interest in the subject property. Additionally, if a special equity is found and thus awarded, the award is permanent and not subject to modification.

(3) Canakaris, 382 So. 2d at 1200.

(4) FLA. STAT. [section] 61.075 (1993) reads in pertinent part:

"(1) In a proceeding for dissolution of marriage, in addition to all other [equitable] remedies ... the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

"(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

"(b) The economic circumstances of the parties.

"(c) The duration of the marriage.

"(d) Any interruption of personal careers or educational opportunities of either party.

"(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

"(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

"(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

"(h) The desirability of maintaining the marital home as a residence [for specific reasons]....

"(i) The intentional dissipation, waste, depletion or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition."

(5) Straley v. Frank, 585 So. 2d 334, 336 (Fla. 2d D.C.A. 1991).

(6) Baird v. Baird, 696 So. 2d 844, 845 (Fla. 2d D.C.A. 1997).

(7) The opinion continues by quoting a commentator: "One important difference between case law and the statute is the treatment of real estate that is held by the parties as tenants by the entireties. The statute provides that the conveyance of premarital real estate to entireties ownership changes the character of the premarital property and creates a presumption that the parties intended the property to be subject to equitable distribution on divorce. In contrast, Ball v. Ball and subsequent cases held that once a spouse proved that property was originally nonmarital, a presumption arose that the property remained nonmarital, unless the other spouse could show that a gift was intended. Thus, the 1988 statute has shifted the burden of proof by creating a presumption that property transferred to a tenancy by the entireties is marital, regardless of its original acquisition. It is up to the spouse who claims a special equity interest to prove that a gift of that interest was not intended." Robertson v. Robertson, 593 So. 2d 491,494 (Fla. 1991) citing 2 FLA. FAM. L. (MB) [section] 34.24 (Mar. 1990).

(8) In Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st D.C.A. 1993), the trial court awarded the wife a special equity of $28,000, which the wife claimed she contributed from nonmarital funds, toward the purchase of a lot the couple owned jointly. The appellate court reversed, explaining that the wife had failed to carry her burden of proving that a gift of those funds was not intended. There is a plethora of cases which demonstrate this point. See also Bomwell v. Bomwell, 676 So. 2d 508 (Fla. 4th D.C.A. 1996)(holding that the trial court erred in finding that the wife had a special equity in the marital home where the wife presented no evidence to rebut the presumption that she had intended the funds to be a gift); Kelly v. Kelly, 637 So. 2d 43 (Fla. 2d D.C.A. 1994) (reversing award of a mortgage to the wife as a special equity because even though the home was purchased using funds that the wife inherited she did not present evidence to rebut the gift presumption); Rutland v. Rutland, 652 So. 2d 404 (Fla. 5th D.C.A. 1995) (holding that the home the husband purchased prior to the marriage and thereafter deeded to his wife as tenants by the entirety was presumed a gift and therefore no special equity was found); Geddes v. Geddes, 530 So. 2d 1011 (Fla. 4th D.C.A. 1988).

(9) The equation was that the special equity acquired is equal to one half the ratio which his or her contribution bears to the entire consideration in addition to the contributing spouse's automatic 50% interest in the subject property. See Landay v. Landay, 400 So. 2d 43 (Fla. 2d D.C.A. 1981).

(10) Those cases are: Hieke v. Hieke, 782 So. 2d 443 (Fla. 4th D.C.A. 2001); Romano v. Romano, 632 So. 2d 207 (Fla. 4th D.C.A. 1994); Straley v. Frank, 585 So. 2d 334 (Fla. 2d D.C.A. 1991); Gallinar v. Gallinar, 763 So. 2d 447 (Fla. 3d D.C.A. 2001); Hess v. Hess, 715 So. 2d 1044 (Fla. 4th D.C.A. 1998); Adair v. Adair, 720 So. 2d 316 (Fla. 4th D.C.A. 1998); Williams v. Williams, 683 So. 2d 1119 (Fla. 3d D.C.A. 1996); Straley v. Frank, 612 So. 2d 610 (Fla. 2d D.C.A. 1992); Smeaton v. Smeaton, 678 So. 2d 501 (Fla. 1st D.C.A. 1996); Hess v. Hess, 654 So. 2d 199 (Fla. 4th D.C.A. 1995); Saare v. Saare, 610 So. 2d 628 (Fla. 1st D.C.A. 1992); Heinrich v. Heinrich, 609 So. 2d 94 (Fla. 3d D.C.A. 1992); Greenberg v. Greenberg, 602 So. 2d 626 (Fla. 4th D.C.A. 1992); Napier v. Napier, 600 So. 2d 48 (Fla. 3d D.C.A. 1992); Holmes v. Holmes, 578 So. 2d 323 (Fla. 4th D.C.A. 1991); Wertkin v. Wertkin, 763 So. 2d 461 (Fla. 4th D.C.A. 2000); Fellman v. Southfield Farms Corp., 747 So. 2d 1035 (Fla. 4th D.C.A. 1999); Reich v. Reich, 652 So. 2d 1200 (Fla. 4th D.C.A. 1995); and Roberge v. Buis, 95 F.3d 42 (Va. 4th Cir. 1996).

(11) For a complete list of the relevant factors, see supra note 4.

(12) There are many cases where the courts opine that there was insufficient evidence to justify an unequal division based on the statutory factors.
Special Equity Case Chart

(Grouped by decisions where special equity was found and where no
special was found.)

Special Equity Found

Case Type of Special Equity/
 Nonmarital Property Court Action
 Claimed

Adair v. Adair, Down payment in marital Special equity granted;
720 So. 2d 316 (Fla. home from nonmarital used Landay formula
4th DCA 1998) funds

Archer v. Archer, Real property and Presumption of gift as
712 So. 2d 1198 Merrill Lynch account to real property, but
(Fla. 5th DCA 1998) wife received through no presumption of gift
 death of her mother as to personal property
 Wife commingled the
 bank account with
 marital funds

Ball v. Ball, Funds put into marital Special equity created
335 So. 2d 5 home by an unrebutted sho-
(Fla. 1976) wing that all of the
 consideration for pro-
 perty was supplied by
 one's party's clearly
 nonmarital funds

Bashem v. Bashem, Funds intermingled in Special equity for the
541 So. 2d 118 (Fla. joint bank accounts and traceable funds only
3d DCA 1989) utilized for living and
 other expenses during
 the marriage

Canakaris v. District Court of Special equity should
Canakaris, Appeals awarded lump not be used this way
382 So. 2d 1197 sum alimony to wife in but rather only should
(Fla. 1980) form of special equity be used when analyzing
 in marital home a vested property
 interest

Gardner v. Gardner, Nonmarital funds used No evidence that gift
452 So. 2d 981 (Fla. toward purchase of was intended; special
5th DCA 1984) marital home equity for the specific
 dollar contribution of
 nonmarital funds

Griffiths v. Lot that husband Landay formula applied
Griffiths, brought to marriage to calculate exact
563 So. 2d 773 (Fla. and funds he used to amount of special
3d DCA 1990) pay off its mortgage equity
 were nonmarital

Heath v. Heath Property and business Special equity granted
103 Fla. 1071, 138 of husband in recogni- to avoid harshness of
So. 796 (Fla. 1932) tion of material con- rule against allowing
 tributions during the alimony to an adulte-
 marriage rous wife

Heinrich v. Money placed in trust Special equity as to
Heinrich, fund that was created premarital funds that
609 So. 2d 94 (Fla. during the marriage could be traced. No
3d DCA 1992) special equity for
 marital funds earned
 during course of
 marriage

Hill v. Hill Husband put home in Special equity found;
675 So. 2d 168 (Fla. both names for estate presumption of gift
5th DCA 1996) planning purposes; no overcome
 gift intended

Knecht v. Knecht, 1) Marital property: 1) Special equity
629 So. 2d 883(Fla. Down payment on marital credit in specific
3d DCA 1993) home. amount
 2) Vacation property: 2) No special equity
 Down payment from because no evidence to
 nonmarital funds rebut presumption of
 gift

Landay v. Landay, Spouse furnished some Special equity acquired
400 So. 2d 43 (Fla. but not all of conside- equal to the ratio
2d DCA 1981) ration for entireties which his or her con-
 property tribution bears to the
 entire consideration
 in addition to the
 contributing spouse's
 50% interest in the
 remainder of the
 property

Livingston v. Premarital contribu- Special equity
Livingston, tions to a retirement entitlement
633 So. 2d 1162 plan
(Fla. 1st DCA 1994)

Massis v. Massis, Contributions toward Special equity in the
551 So. 2d 587 (Fla. other spouse's home in increase in value of
1st DCA 1989) form of renovations the home
 and mortgage payments
 which improved its
 value

Pleas v. Pleas, Income used by both Special equity granted
652 So. 2d 435 (Fla. parties toward hus- for enhancement in
1st DCA 1995) band's premarital home value and appreciation
 of nonmarital asset

Rabben v. Rabben, Premarital funds used Special equity found
468 So. 2d 500 (Fla. to purchase home which because all of conside-
5th DCA 1985) was transferred into ration used to purchase
 both names when one home so under Ball, no
 had cancer gift presumed.

Roberts v. Roberts, Down payment on marital Special equity found.
520 So. 2d 598 (Fla. home Used Landay formula to
1st DCA 1987) determine amount. Must
 use purchase price not
 sales price.

Robertson v. Funds in marital home Statute pre-empts Ball
Robertson, and Straley. Presump-
593 So. 2d 491 tion that entireties
(Fla. 1991) real estate is marital
 regardless of who pays
 for it. Party claiming
 special equity also
 bears burden of proving
 gift not intended

Rosenfeld v. Funds used toward Home: Special equity in
Rosenfeld, marital home and mari- down payment; enhance-
597 So. 2d 835 tal funds used toward ment due to efforts
(Fla. 3d DCA 1992) limited partnership marital. Partnership:
 Enhancement marital
 after special equity
 calculation

Shapiro v. Shapiro, Funds contributed Special equity calcu-
484 So. 2d 49 (Fla. toward marital home for lated using Landay
1st DCA 1986) down payment and for formula
 improvements

Smith v. Smith, Funds toward purchase Special equity granted
532 So. 2d 1297 of marital home
(Fla. 4th DCA 1988)

Spano v. Spano, Contested Marital Agreement stands
698 So. 2d 324 (Fla. Settlement Agreement because through the
4th DCA 1997) which gave husband agreement the parties
 special equity in manifested their desire
 marital home to make their own
 division of the marital
 assets

Stefanowitz v. Home purchased prior to Special equity for down
Stefanowitz, marriage and lived in payment plus passive
586 So. 2d 460 (Fla. through duration of appreciation
1st DCA 1991) 18-year marriage

Straley v. Frank, Funds used toward Must demonstrate
585 So. 2d 334 (Fla. entireties real estate property derived from
2d DCA 1991) and toward husband's nonmarital source and
 businesses gift not intended.
 Passive appreciation
 on nonmarital asset
 clearly nonmarital

Wertkin v. Wertkin, Funds contributed by Remanded for special
763 So. 2d 461 (Fla. each spouse toward equity finding for each
4th DCA 2000) marital home for down spouse's contribution
 payment and for repairs

No Special Equity Found

Amato v. Amato, Life insurance proceeds No special equity
596 So. 2d 1243 placed in joint because no proof that
(Fla. 4th DCA 1992) checking account gift not intended

Baird v. Baird, Funds put into marital No special equity
696 So. 2d 844 (Fla. home because no evidence
2d DCA 1997) offered to support that
 contention

Ballew v. Ballew, Marital home purchased Marital; no special
683 So. 2d 1171 with joint funds but equity
(Fla. 4th DCA 1996) placed in husband's
 name

Blase v. Blase, Passive accumulation on Not a special equity
704 So. 2d 741 (Fla. 401K that husband ac- but rather just a
4th DCA 1998) quired prior to nonmarital asset
 marriage

Bomwell v. Bomwell, Funds put into marital No special equity
676 So. 2d 508 (Fla. home absent evidence pre-
4th DCA 1996) sented to rebut pre-
 sumption of gift

Collinsworth v. Nonmarital funds used No special equity
Collinsworth to purchase marital absent proof that gift
624 So. 2d 287 (Fla. home was not intended
1st DCA 1993)

Cornette v. Enhancement of value in No special equity be-
Cornette, solely owned premarital cause petition did not
704 So. 2d 667 (Fla. property allege special equity
2d DCA 1997)

Duncan v. Duncan, Marital home acquired No special equity
379 So. 2d 949 (Fla. with funds earned by
1980) husband and wife during
 course of marriage

Dyson v. Dyson, Mortgage payments made Mortgage payments are
597 So. 2d 320 (Fla. on marital home not over and above but
1st DCA 1992) rather contribution
 toward marital expenses

Esposito v. Massage business May have special equity
Esposito, started by one spouse but first business must
651 So. 2d 1248 during marriage with be classified as a
(Fla. 2d DCA 1995) marital funds nonmarital or marital
 asset

Farrior v. Farrior, Stocks which were No special equity, just
736 So. 2d 1177 pledged as security for nonmarital. Use of
(Fla. 1999) loans for the married stocks in this way does
 couple loans not convert them into
 a marital asset

Gallinar v. Gallinar Husband contributed No special equity
763 So. 2d 447 nonmarital funds to found; husband did not
(Fla. 3d DCA 2000) home overcome presumption
 of gift

Geddes v. Geddes, Home purchased with No special equity; gift
530 So. 2d 1011 inherited funds presumed; wife contri-
(Fla. 4th DCA 1988) buted a lot of labor;
 house passively appre-
 ciated.

Genunzio v. Funds used to purchase Antenuptial agreement
Genunzio, marital home effectively waived any
598 So. 2d 129 rights to special
(Fla. 2d DCA 1992) equity

Glover v. Glover, Funds used to purchase No special equity
601 So. 2d 231 (Fla. marital home Funds used without a specific
1st DCA 1992) to purchase marital finding as to marital
 home and nonmarital assets

Heim v. Heim, Funds used from sale of Burden of proof is
712 So. 2d 1238 premarital property to greater weight of the
(Fla. 4th DCA 1998) purchase nonmarital evidence, not beyond a
 property reasonable doubt; no
 special equity

Howes v. Howes, Funds used to purchase No special equity
613 So. 2d 551 (Fla. marital home were from because funds placed
4th DCA 1993) an account that was in account were contri-
 originally in husband's buted to by both
 name parties

Kelly v. Kelly, Inherited funds used to No special equity be-
637 So. 2d 43 (Fla. purchase marital home cause no evidence
2d DCA 1994) presented to rebut gift
 presumption

Ingram v. Ingram, Mortgage payments and No special equity
379 So. 2d 955 (Fla. labor invested in home
1980) owned by other spouse

Knecht v. Knecht,
629 So. 2d 883 (Fla. 1) Marital property: 1) Special equity
3d DCA 1993) Down payment on marital credit in specific
 home amount
 2) Vacation property: 2) No special equity
 Down payment from because no evidence to
 nonmarital funds rebut presumption of
 gift

Mazzorana v. In condo that husband No special equity
Mazzorana, purchased for his
703 So. 2d 1187 parents using marital
(Fla. 3d DCA 1997) funds

McMonagle v. Premarital assets Found to be a gift; no
McMonagle placed in joint names special equity
617 So. 2d 373 (Fla.
5th DCA 1993)

Milligan v. Promissory note that No special equity as
Milligan, husband held from sale the mortgages on the
656 So. 2d 167 of business business were satisfied
(Fla. 2d DCA 1995) with nonmarital funds

Nash v. Nash, Funds in entireties No decision can be made
624 So. 2d 370 properties without first finding
(Fla. 3d DCA 1993) whether properties are
 marital or nonmarital

O'Dell v. O'Dell, In premarital home No special equity
583 So. 2d 1087 owned by husband claimed or shown
(Fla. 5th DCA 1991)

Parker v. Parker, In premarital home No special equity
610 So. 2d 719 owned by husband because no evidence
(Fla. 1st DCA 1992) presented to prove that
 gift was not intended.

Pinder v. Pinder, Preschool business that No special equity but
750 So. 2d 651 (Fla. wife owned prior to husband entitled to his
2d DCA 1999) marriage but husband's share of the enhance-
 efforts enhanced ment in value that took
 place as a result of
 his efforts

Ramer v. Ramer, Domestic contributions No special equity for
382 So. 2d 375 (Fla. in form of raising the domestic contributions
2d DCA 1980) children

Ray v. Ray, Inherited funds used No special equity
624 So. 2d 1146 for additions and because no evidence
(Fla. 1st DCA 1993) improvements in marital presented that gift was
 home not intended

Rutland v. Rutland, 1) Corporation, half of 1) Corp: Wife entitled
652 So. 2d 404 (Fla. which was premarital to percentage; but not
5th DCA 1995) and the other half classified special
 bought during marriage equity
 with marital funds 2) Home: presumed gift-
 2) Premarital home no special equity
 transferred to
 entireties

Saare v. Saare, Marital home titled Remanded for classifi-
610 So. 2d 628 (Fla. solely in husband's cation of marital and
1st DCA 1992) name nonmarital asset. Only
 then can special equity
 be determined

Sasnett v. Sasnett, Marital home built on Remanded for specific
679 So. 2d 1265 nonmarital property findings about parties'
(Fla. 2d DCA 1996) assets so that proper
 division of marital
 property could be done

Seiffert v. Insurance proceeds No special equity.
Seiffert, which had been Nonmarital traceable
702 So. 2d 273 (Fla. commingled with marital proceeds stay
1st DCA 1997) assets nonmarital

Smith v. Smith, Premarital home No special equity; just
571 So. 2d 1384 a nonmarital asset
(Fla. 1st DCA 1990)

Straley v. Frank, Funds used toward Must demonstrate pro-
585 So. 2d 334 (Fla. entireties real estate perty derived from
2d DCA 1991) and toward husband's nonmarital source and
 businesses gift not intended.
 Passive appreciation
 on nonmarital asset
 clearly nonmarital

Taber v. Taber, Payments made during Any expenditures made
626 So. 2d 1089 marriage during marriage pre-
(Fla. 1st DCA 1993) sumed to be in further-
 ance of the marriage

Wolfson v. Cary, Funds invested in No special equity
488 So. 2d 864 insurance company because each spouse's
(Fla. 3d DCA 1986) formed by husband and contribution was rela-
 wife during the tively equal
 marriage

Young v. Young, Marital home willed to Husband had burden to
606 So. 2d 1267 couple by husband's prove it was nonmari-
(Fla. lst DCA 1992) mother tal; no special equity

Young v. Young, Nearly $2 million given Insufficient evidence
698 So. 2d 314 (Fla. to husband by his for classifying that
3d DCA 1997) father for services as nonmarital
 performed prior to
 marriage


Victoria M. Ho is a partner in the law firm of Asbell, Coleman, Ho & Hazzard, P.A., Naples. She is a fellow of the American Academy of Matrimonial Lawyers and is board certified in marital and family law. She practices exclusively in the area of marital and family law. Ms. Ho is a graduate of the University of Wisconsin Law School, and received her undergraduate degree, magna cum laude from the University of Minnesota.

Rebecca Y. Zung is an associate with Asbell, Coleman, Ho & Hazzard, P.A., Naples. She received her J.D., cum laude, from the University of Miami School of Law and her B.S., cum laude, from Millersville University of Pennsylvania.

This column is submitted on behalf of the Family Law Section, Norman D. Levin, chair, and Peter L. Gladstone, editor.
COPYRIGHT 2001 Florida Bar
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2001 Gale, Cengage Learning. All rights reserved.

Article Details
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Title Annotation:Family Law; Florida; marital assets
Author:Ho, Victoria M.; Zung, Rebecca Y.
Publication:Florida Bar Journal
Geographic Code:1U5FL
Date:Nov 1, 2001
Words:6287
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