ARE ALL BONUSES MARITAL PROPERTY?
This is a complex question. The answer depends on when the bonus was awarded and what effort is required before the bonus is paid. In some instances the bonus may be based on past and future effort. Effort is either incidental to the award, directly tied to the award or tangential to the award. The only effort that causes the award is directly tied to the award, as the first and last effort is considered passively earned. Very few attorneys and very few experts understand this. Therefore, you chance for a successful outcome depends not just on whether the facts and law support the conclusion, but the ability to make that presentation to the court because judges are lawyers and few judges understand this as well. Read here https://www.floridabar.org/news/tfb-journal/?durl=/DIVCOM/JN/jnjournal01.nsf/Articles/6852FDEBC8F7768685257EEB004DAC25
In order to understand tangential effort, I wrote in the initial brief for 4th DCA O’Neill that I didn’t care what level of effort was shown in earning the appreciation if the same result could have been achieved with little or no effort, the effort did not cause the growth. The 4th DCA agreed and changed long-standing law on the subject. Therefore, the effort is not responsible for the growth, but is tangential to the growth. While it is very different from little or no effort it is nonetheless not responsible for the growth. O’Neill v. O’Neill, 858 So.2d 3 (Fla. 4th DCA 2004)
Sometimes effort is is neither passive nor direct, but is interdependent on other effort, where the two are not mutually exclusive but equally contribute to the result. Each interval of measured effort has direct effort causing the growth. All growth is then built on a foundation of efforts. Most pension plan rulings in the US recognize the foundation of efforts apply to pension plans, thereby allowing the non-employee spouse share in some form of salary increase after the parties divorce. The Florida Supreme Court recognized a foundation of efforts ruling in Boyett v. Boyett, 703 So.2d 461 (Fla. 1997) that the benefit earned should not be discounted for early retirement when the participant didn’t have that reduction apply, thereby finding certain early retirement subsidies are marital property. That ruling was a significant win on one of the two issues raised on appeal. That was the first appellate brief I wrote and it cannot apply to early retirement subsidies without applying to the primary benefit (which was lost). That is why Florida is the only state in the country with such a convoluted ruling. That should have been argued in oral argument and wasn’t. I am not an attorney so I can not do oral argument.
All four efforts are the only efforts recognized in family law showing just how complicated classification of a bonus can be. Not making the right arguments will result in an unfair property division.