Commingling: How Mixing Assets Can Change Everything in a Florida Divorce

May 23, 2025

By Michael P. Sampson

Sampson Collaborative Law

This guide explains commingling, how it affects your assets, and ways to keep your separate property safe.

What Are Marital and Nonmarital Assets in Florida?

In a Florida divorce, assets are split into two types:

• Marital Assets: Accounts and assets acquired during the marriage, the enhancement in value and appreciation in nonmarital assets from either spouse’s efforts during the marriage or from the expenditure of marital funds or marital assets, or gifts between spouses. Section 61.075(6)(a), Florida Statutes. Marital assets include those bought with your income (your paycheck) or a house bought with money earned while married. For example, in Distefano v. Distefano, 253 So. 3d 1178 (Fla. 2d DCA 2018), a wife’s depositing paychecks into checking and savings accounts she had funded with premarital funds, from selling a home she bought before the marriage, made the account marital.
• Nonmarital Assets: Accounts and assets you owned before marriage, assets exchanged for them, or assets inherited during marriage, or acquired by a will or gift from someone other than your spouse, if kept separate. Section 61.075(6)(b), Florida Statutes. Street v. Street, 303 So. 2d 1253 (Fla. 2d DCA 2020) said bank accounts opened before marriage, with no money added during marriage, stay separate. Stocks you bought before marriage also stay separate if they don’t grow with shared effort. In Rivera v. Rivera, Case No. 3D22-1914 (Fla. 3d DCA 2023), a house the husband inherited from his grandmother stayed separate because the wife wasn’t on the deed, never lived in the house, didn’t contribute to its maintenance, and no marital funds went to pay down the mortgage.

Timing Matters

Unless you have a written agreement that says otherwise, asset status is determined on the date of filing for divorce, not on the date of separation (Yon v. Yon, 286 So. 3d 322, (Fla. 1st DCA 2019)); section 61.075(7), Florida Statutes. So, if you separate but don’t file for years, changes in asset status during that gap count. 

Knowing what counts as separate property is the first step to protect your money, especially inheritances or pre-marriage savings.

Commingling: When Nonmarital Assets Become Marital

Commingling happens when you mix separate assets with marital ones. This makes the separate part lose its identity. You can’t unmix cream from coffee. In Florida, this mixing makes the asset shared, and the court can divide it as a marital asset. Dravis v. Dravis, 170 So. 3d 849 (Fla. 2d DCA 2015).

Real-Life Examples: Depositing your paycheck into a pre-marriage account (Distefano v. Distefano, 253 So. 3d 1178 (Fla. 2d DCA 2018)) or moving separate funds into a joint account for shared expenses (Knecht v. Palmer, 252 So. 3d 842 (Fla. 5th DCA 2018)) causes commingling. In Sturms v. Sturms, 226 So. 3d 1004 (Fla. 1st DCA 2017)), money from selling drilling rights owned by the husband’s premarital business became marital when mixed with business funds earned during the marriage.

Blending marital funds with separate funds can jeopardize their nonmarital character.

Did You Unintentionally Give Your Spouse Half Your Separate Assets?

Commingling assets doesn’t just make them marital – it can also create a legal presumption you meant to give half to your spouse.

Presumption of Gift:  Mixing separate funds with funds in a joint account shows you intended a give half to your spouse. Link v. Link, 897 So. 2d 533 (Fla. 5th DCA 2005); Spielberger v. Spielberger, 712 So. 2d 835, 1998). In Link v. Link, a wife’s funds from life insurance proceeds deposited into a joint account were presumed a gift, and she couldn’t prove otherwise.

Proving It Wasn’t a Gift: You must prove you intended no gift, which is hard once money gets mixed. Woodard v. Woodard, 634 So. 2d 782 (Fla. 5th DCA 1994).

No Mixing, No Gift: If you keep funds separate, the court won’t presume a gift. Your spouse must prove you meant to share the funds. Grieco v. Grieco, 917 So. 2d 1052 (Fla. 2d DCA 2006). In Rogers v. Rogers, 351 So. 3d 1230 (Fla. 2d DCA 2022), the court saw no proof a joint account was just for convenience, so the trust money was considered a gift, making a boat purchased with such money marital.

Joint accounts are risky. Keep separate funds in your own account to avoid sharing them by mistake.

Nonmarital Assets That Stay Separate

Some assets can stay separate if you’re careful. Not all assets are vulnerable to commingling.

Accounts Kept Separate:

Accounts funded only with separate funds, even if opened during marriage, stay separate. Street v. Street, 303 So. 2d 1253 (Fla. 2d DCA 2020).

Stocks and Investments:

Stocks or investments you had before marriage stay separate unless commingled or they grow with marital contributions or effort. Farrior v. Farrior, 736 So. 2d 1177 (Fla. 1999); Abdnour v. Abdnour, 19 So. 3d 357 (Fla. 2d DCA 2009). 

Inherited Assets and Proceeds:

Assets you inherit, including money from selling those assets, stay separate if you don’t commingle them. Rivera v. Rivera, Case No. 3D22-1914 (Fla. 3d DCA 2023). In Rivera, money from selling an inherited house, used to buy a home for the husband’s mother and a car, stayed separate because he hadn’t commingled the proceeds with marital funds.  

Passive Appreciation:

Appreciation of nonmarital assets remains nonmarital unless marital efforts or funds enhance the value. Doerr v. Doerr, 751 So. 2d 154 (Fla. 2d DCA 2000). However, Knecht v. Palmer, 252 So. 3d 842 (Fla. 5th DCA 2018) found that appreciation of a nonmarital home became marital due to commingled funds used for remodeling, though the court made an unequal distribution to adjust to achieve equity.

Houses, inheritances, and some investments can stay separate, but don’t mix them with shared funds.

Proving Your Nonmarital Asset Is Separate

Claiming an asset is your separate, nonmarital asset isn’t enough—you need proof. Commingling makes this harder.

Your Job: Prove the Asset Stayed Separate!

You must show clear proof, like bank statements or your testimony. Street v. Street, 303 So. 2d 1253 (Fla. 2d DCA 2020); White v. White, 965 So. 2d 164 (Fla. 5th DCA 2007). In White, a husband admitted to commingling his inheritance with marital funds, which sank his claim the inheritance was nonmarital.

Commingling Makes Proof Tough, But Not Impossible.

Standard of Review

A trial judge may characterize an asset as marital or non-marital. But an appellate court asked to review such a decision – a determination of law about the character of the asset – reviews it with a fresh eye. That fresh new look is known as de novo review. Dravis v. Dravis, 170 So. 3d 849, 852 (Fla. 2d DCA 2015).

In contrast, when a spouse asks an appellate court to review findings about facts the trial judge relied on, to decide if, under Florida law, the asset is marital or nonmarital, the court reviews the findings for competent, substantial evidence. Tradler v. Tradler, 100 So. 3d 735 (Fla. 2d DCA 2012). The appeals court will review the trial judge’s decisions about valuing and distributing marital assets and liabilities for abuse of discretion. Bogard v. Bogard, 490 So. 2d 43 (Fla. 1986) (citing Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)); Marconi v. Erturk, 293 So. 3d 19 (Fla. 4th DCA 2020).

Support Your Claims With Solid Evidence!

Courts look carefully at the character of an asset as separate or marital, but they need solid proof when a spouse claims an asset is — and stayed — separate. Rogers v. Rogers, 351 So. 3d 1230 (Fla. 2d DCA 2022); Rennert v. Rennert, 307 So. 3d 1021 (Fla. 2d DCA 2020). For example, in Rivera v. Rivera, Case No. 3D22-1914 (Fla. 3d DCA 2023), a husband proved inherited money was separate by showing no commingling; no documentary or testimony from the wife showed otherwise.

Keep separate funds and assets separate. Keep detailed, clear records.

Protect Your Nonmarital Assets.

Protect your separate assets by avoiding commingling. Some practical strategies:

• Keep Your Own Account: Keep separate funds in an account just in your name (Grieco v. Grieco).
• Avoid Joint Accounts: Mixing separate money with joint funds risks commingling and gift presumptions (Link v. Link; Rogers v. Rogers).
• Document Transactions: Keep clear records to show the source of funds for purchases or investments (Street v. Street; Rivera v. Rivera).
• Spend Separate Money Directly: Use only separate funds to buy things without mixing them (Yon v. Yon warns that a small marital deposit can change everything).
• Prenuptial and Postnuptial Agreements: Use a prenup or postnup to say which assets stay separate, even if they get mixed.
• Collaborative Divorce: Instead of fighting in court, think about collaborative divorce – a team divorce process. Collaborative divorce lets you and your spouse work together to make a deal that respects both separate and shared contributions. 

Can A Judge Adjust for Commingling?

Florida courts usually split shared assets evenly, but they can adjust if there’s a good reason (Florida Statutes, Section 61.075).

• Even Split to Start: Courts start with equal division but can adjust based on statutory factors. Knecht v. Palmer, 252 So. 3d 842 (Fla. 5th DCA 2018). In Knecht, the court erred in classifying home appreciation as nonmarital but upheld the trial court’s unequal distribution of marital assets to “do equity.”
• Unequal Split Possible: Courts may award more than half the marital pie to a spouse who contributed significant nonmarital assets, but commingling weakens the case for unequal distribution. In Hitchcock v. Hitchcock, 992 So. 2d 436 (Fla. 4th DCA 2008), an unequal 72%/28% split was overturned because commingling – presumptively a gift to the husband of one-half the funds commingled – negated the wife’s claim she should get credit for her nonmarital contributions. After properly classifying assets as marital or nonmarital, a trial judge may consider the totality of the circumstances in determining if an unequal distribution of marital assets is justified. See Yon v. Yon, 286 So. 3d 322, (Fla. 1st DCA 2019); McMonagle v. McMonagle, 617 So. 2d 373 (Fla. 5th DCA 1993).
• Short Marriages: In short marriages, courts are more likely to give more to the person who contributed more separate assets. Williams v. Williams, 686 So. 2d 805 (Fla. 4th DCA 1997); Ibanez-Vogelsang v. Vogelsang, 601 So.2d 1303 (Fla. 3d DCA 1992). 
• No Punishment: When there has been no commingling, a judge can’t award one spouse’s nonmarital asset to the other spouse to punish the owner spouse. In Rivera v. Rivera, Case No. 3D22-1914 (Fla. 3d DCA 2023), the court wrongly treated the husband’s inherited money as marital, to punish him for violating a status quo order, but the higher court reversed because there was no commingling.

Commingling makes it harder to get an unequal distribution of marital assets. To make separate assets subject to equitable distribution as marital assets, judges must follow proof, not do so to punish a spouse.

Conclusion

Mixing assets can change how they’re split in a Florida divorce, turning separate property into shared property, especially with money. Cases like Yon v. Yon, Rogers v. Rogers, Rivera v. Rivera, and Rennert v. Rennert show the risks of mixing, the need to prove what’s separate, and exceptions for houses and inheritances.

To protect your assets, talk with a family law attorney, keep detailed records, consider legal agreements to avoid commingling pitfalls, and consider collaborative divorce.

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FAQs: Commingling in Florida Divorce

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Further Reading

• Calculate Marital Appreciation of Nonmarital Property – Post-Kaaa
• Domestic Partnership Agreements: Separate and Joint Property
• Premarital Accounts – Calculate Marital and Nonmarital Shares
• Collaborative Marital Agreements — Beneficiary Designations After Divorce
• Jurisdiction Over Property at Issue in Florida Divorce