Florida law requires that a court equally distribute a marital asset unless a “legally sufficient justification for an unequal distribution is given based on the relevant statutory factors.” Foley v. Foley, 19 So. 3d 1031, 1032 (Fla. 5th DCA 2009); see also, Stough v. Stough, 18 So. 3d 601, 604-05 (Fla. 1st DCA 2009)(reversing unequal distribution when factors relied upon by the trial court did not support unequal distribution). In 1983, the Florida Supreme Court addressed the issue of a spouses’ “special equity” in a home. See Landay v. Landay, 429 So. 2d 1197 (Fla. 1983). In Landay, the court held that a special equity exists where there is an unrebutted showing that all of the funds used to purchase property used by two spouses was supplied by one spouse “from a source clearly unconnected with the marital relationship.” Id. at 1199.
In 2009, Fla. Stat. § 61.075(11) was amended to abolish the special equity recognized in Landay. Section 61.075(11) currently provides:
Special equity is abolished. All claims formerly identified as special equity, and all special equity calculations, are abolished and shall be asserted either as a claim for unequal distribution of marital property and resolved by factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property.
Despite the abolition of special equity, courts still cite cases recognizing special equity when considering claims for unequal distribution. See, e.g., Davis v. Davis, 32 So. 3d 743 (Fla. 1st DCA 2010)(recognizing that a party claiming a special equity must overcome the presumption that a gift was not intended).
Florida’s current equitable distribution statute, Fla. Stat. § 61.075, presumes that parties in a divorce proceeding will receive an equal distribution of marital assets and liabilities “unless there is a justification for an unequal distribution basted on all relevant factors ..” Section 61.075 goes on to list some of the relevant factors considered by the court, including 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.” Fla. Stat. § 61.075(1)(g).
It is not uncommon in a divorce proceeding for one spouse to have previously made a significant capital contribution towards the purchase of the home before the marriage. A question often arises whether the contributing spouse can recover the investment in the home in addition to his or her share of equitable distribution. Section 61.075(6)(a)(2) provides that real property held as tenants by entireties, regardless of whether it was acquired before or during the marriage, is presumed to be a marital asset unless a party can establish that the property, or portion thereof, is nonmarital.
A party seeking to show a special interest in property must show that payment was made toward the property using nonmarital funds or as a result of special efforts and was not the result of marital expenses. Syverson v. Jones, 10 So. 3d 1123, 1126 (Fla. 1st DCA 2009), citing Taber v. Taber, 626 So. 2d 1089, 1090 (Fla. 1st DCA 1993)(holding that a “special equity is a vested property interest brought into the marriage or acquired during the marriage because of a contribution of services or funds over and above normal marital duties.”) Title alone does not determine whether property is marital or nonmarital. Pfrengle v. Pfrengle, 976 So. 2d 1134, 1136 (Fla. 2d DCA 2008).