Active Appreciation of a Nonmarital Asset – The Latest From the Fourth District Court of Appeals

When classifying an appreciated asset for purposes of Equitable Distribution, family law practitioners can readily state the black letter law that active appreciation of a nonmarital asset is marital and passive appreciation is nonmarital. Florida Statute §61.075 tells us that “marital assets include the enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets” – AKA active appreciation. But what does that actually mean? Although the broad language of the statute certainly provides family law attorneys with something to argue about, it’s critical to remain adept in the law and be on the lookout for case law that affords us with interpretive direction and clarification.

Fortunately, On February 3, 2016, the Fourth District Court of Appeal published an opinion that addresses the question of “whether the husband exerted the sort of ‘effort’ required to move the appreciation value from the nonmarital category to the marital one.” Witt-Bahls v. Bahls, 41 Fla. L. Weekly D 307 (Fla. 4th DCA 2016). Witt-Bahls v. Bahls took the analysis of Robbie v. Robbie, 654 So. 2d 616 (Fla. 4th DCA 1995) one step further and effectively added one more piece to the appreciation puzzle. Specifically, in Robbie v. Robbie, the Court found that the appreciation of stock owned by a general manager of a family-owned business was a martial asset. In Witt-Bahls v. Bahls, the Court specifically explains that the characteristic of the business in Robbie v. Robbie as “family-owned” and the fact that the husband was in a “position of significant authority” constitutes key features in the classification of the appreciation of stock. Therefore, we now know that in measuring the “effort” of a spouse in order to classify the appreciation of stock as marital, the business at issue must be one that is owned or run by the spouse’s family, and the spouse must occupy a significant position of authority or management in that business.

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