Florida Court Clarifies Marital Interest in Non-Marital Property
In Wilson v. Hurter (September 2025), Florida’s Second DCA addressed how marital contributions affect the valuation and distribution of a spouse’s premarital property during divorce.
In Wilson, the wife owned a home before marriage, jointly with her father. During the marriage, marital funds were used for mortgage payments, taxes, and insurance. The trial court calculated a $72,000 marital interest in the property as a result of these expenses, without evidence that they increased the home’s value.
The Second DCA reversed the trial court. The Second DCA found that F.S. 61.075(6)(a)(1)(b) governs the issue of active appreciation of nonmarital assets resulting from the expenditure of marital funds. According to that statute, only value-enhancing contributions are considered when determining valuation for distribution purposes. Marital contributions that merely maintain the property, such as taxes and insurance, do not add to property value and do not create marital equity. The Second DCA directed the trial court to reconsider whether the mortgage paydown increased the equity in the home, and if so, by how much. The Second DCA further held that the amount subject to distribution to husband and wife should only be half of the enhanced value due to the wife’s shared ownership of the non-marital home with her father.
In some ways, this case seems to be much ado about nothing. A spouse who has made non-value enhancing contributions to non-marital property has recourse under a different statute. In Cole v. Robert (1993), the Fourth DCA held that where one spouse has paid significant expenses on the property of another spouse, even if they do not enhance the value of the property, the trial court may consider those payments in determining whether there is a justification for an unequal distribution of marital assets under F.S. 61.075(1)(g). Note that the marital estate appears to be limited to recovering the non-value enhancing marital contributions that were actually expended, without any interest, making the non-consenting spouse in the marital estate an unwilling, unpaid creditor. Not a perfect answer, but better than nothing.
What is puzzling about this case is that none of the above legal authority provides for distribution of passive appreciation that accrued during the time that marital funds were used to pay the non-marital mortgage. Neither the husband’s attorney nor the court addressed passive appreciation owed to the marital estate under the coverture formula set forth in F.S. 61.075(6)(a)(1)(c). Nonetheless, this case is helpful in distinguishing between value enhancing, active appreciation distributable to the marital estate under F.S. 61.075(6)(a)(1)(b) and non-value enhancing contributions that may be distributable under F.S. 61.075(1)(g).
Michael DeVoe is a divorce attorney in Orlando, Florida practicing contested divorce, uncontested divorce, timesharing, visitation, custody, paternity, child support, injunctions, and other family law cases.
