In Florida, every divorce that involves assets or debts requires a formal division of the marital estate. That process is governed by §61.075, Florida Statutes — the equitable distribution statute — which controls what each spouse receives regardless of whose name appears on an account, a deed, or a title. Understanding how that statute operates is the starting point for every Florida divorce proceeding that touches property.
Equitable distribution does not mean equal. It means fair. The court begins with a presumption of a 50/50 split and adjusts based on statutory factors specific to the marriage. Before any division occurs, every asset and liability must be classified as either marital or non-marital — marital property is subject to distribution, non-marital property is returned to its original owner.
The Legal Standard: Equitable Distribution
Under §61.075, Fla. Stat., when spouses cannot agree on how to divide their assets, the court applies the equitable distribution framework to make that determination. The result is not automatically a 50/50 split. The court starts there and deviates based on the factors set out in §61.075(1)(a)–(j), Fla. Stat.
Marital vs. Non-Marital Property
Before any division occurs, the court identifies and separates marital and non-marital property:
- Marital Assets: Any assets acquired or income earned by either spouse during the marriage — regardless of whose name is on the title — as defined under §61.075(6)(a)1., Fla. Stat.
- Non-Marital Assets: Assets owned prior to the marriage, or specific non-interspousal gifts and inheritances received during the marriage, as defined under §61.075(6)(b), Fla. Stat.
Commingling: When a non-marital asset is mixed with marital funds — an inherited sum deposited into a joint account used to pay the mortgage, for example — it may lose its protected status entirely. Under §61.075(6)(b)2., Fla. Stat., a non-marital asset retains its separate character only when it has been kept entirely apart from marital funds throughout the marriage. Once the line blurs, the court treats the asset as marital.
Key Factors: What the Court Considers
Under §61.075(1)(a)–(j), Fla. Stat., judges weigh the following factors when determining whether to deviate from equal distribution:
- The contribution of each spouse to the marriage, including homemaking and childcare — §61.075(1)(a)
- The economic circumstances of each party — §61.075(1)(b)
- The duration of the marriage — §61.075(1)(c)
- Any interruption of personal careers or educational opportunities of either party — §61.075(1)(d)
- The contribution of one spouse to the personal career or educational opportunity of the other — §61.075(1)(e)
- The desirability of retaining any asset, including an interest in a business or professional practice, intact and free from interference — §61.075(1)(f)
- Each spouse’s contribution to the acquisition, enhancement, and production of income or improvement of both marital and non-marital assets — §61.075(1)(g)
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, when it is in the child’s best interest and financially feasible — §61.075(1)(h)
- The intentional dissipation, waste, depletion, or destruction of marital assets — §61.075(1)(i)
- Any other factors necessary to do equity and justice between the parties — §61.075(1)(j)
The Role of Spousal Conduct: Fault generally does not affect equitable distribution in Florida — with one significant exception. Under §61.075(1)(i), when a spouse intentionally dissipated, wasted, depleted, or destroyed marital assets — through an affair, gambling, or reckless spending — the court may award the other spouse a larger share of the remaining marital estate. The financial harm to the estate drives the adjustment, not the conduct itself.
The Florida property division attorneys at Kalish & Jaggars, PLLC analyze these factors at the outset of every case, since the weight each one carries depends entirely on the specific circumstances of the marriage.
The Marital Home
The family home is typically the largest single asset in the marital estate. Florida courts consider three approaches:
- Sell the home and divide the proceeds equitably between the spouses
- One spouse buys out the other’s equity interest and refinances or assumes the mortgage solely in their name
- Defer the sale when minor children are involved, allowing the custodial parent to remain in the home until a triggering event — typically the youngest child reaching 18
A buyout only works if the buying spouse qualifies to refinance or assume independently. A deferred sale requires the parties to agree on how carrying costs — mortgage, taxes, insurance, maintenance — are allocated in the interim. Where neither spouse can qualify for a refinance and no agreement on deferred sale is possible, a court-ordered sale is the default.
Retirement Accounts and Pensions
Retirement accounts accumulated during the marriage are marital assets subject to equitable distribution. The mechanism for dividing them differs by account type:
- Private Plans (401k, 403b, IRA): Division requires a Qualified Domestic Relations Order (QDRO) under ERISA §1056(d)(3) and IRC §414(p). A QDRO is the instrument that directs the plan administrator to segregate and transfer the awarded portion without triggering early withdrawal penalties or a taxable distribution event.
- Florida Retirement System (FRS) & Pensions: Only the marital portion — the years accrued during the marriage — is subject to division. FRS benefits are governed by Chapter 121, Fla. Stat. The marital portion is calculated using a coverture fraction: years of FRS membership during the marriage divided by total years of FRS membership at retirement.
Our Florida family law offices work with qualified financial professionals on QDRO drafting and FRS valuation to ensure the division is calculated correctly and the order is accepted by the plan administrator on the first submission.
Business Interests and Professional Practices
A business owned by either spouse will typically require formal valuation before the court can divide it. Florida courts draw a firm line between two types of goodwill:
- Enterprise Goodwill: Value attributable to the business as a going concern — its brand, systems, client base, and operational infrastructure — is a marital asset subject to equitable distribution.
- Personal Goodwill: Value tied to the owner’s individual reputation, relationships, and skill — value that would not transfer to a third-party buyer — is not a marital asset under Florida law. See Thompson v. Thompson, 576 So.2d 267 (Fla. 1991).
A business started before the marriage, or one that received significant capital contributions from non-marital funds, may have a substantial non-marital component that requires tracing to establish. The portion subject to division is rarely the whole.
Stock Options and RSUs
Stock options and restricted stock units granted during the marriage are generally marital property, including shares that vest after the divorce is final. Courts apply a time-rule formula to determine the marital fraction: the number of months between the grant date and the date of separation, divided by the total vesting period. Shares attributable to post-separation service are treated as non-marital.
It’s Not Just About Assets: Dealing with Debts
Equitable distribution applies to liabilities as fully as it does to assets. Mortgages, car loans, credit card balances, personal loans, and tax obligations incurred during the marriage are all subject to division. In cases where spousal support and alimony obligations are also in dispute, debt allocation and support determinations interact — a spouse awarded a larger share of marital debt may receive a corresponding adjustment in support.
Creditor Reality: A divorce decree does not alter the contractual relationship between a joint debtor and a creditor. If a spouse is ordered to pay a joint debt and defaults, the creditor retains the right to pursue the other spouse for the full balance. Closing joint accounts and refinancing joint obligations into one spouse’s name alone is the only reliable way to sever that exposure.
The Process: From Discovery to Final Decree
Step 1: Financial Disclosure
Florida Family Law Rule of Procedure 12.285 requires mandatory financial disclosure from both parties. Each must file a Financial Affidavit (Form 12.902(b) or (c)) within 45 days of service, listing all income, expenses, assets, and debts. Concealing or misrepresenting assets can result in sanctions, attorney’s fee awards, and a set-aside of the final judgment.
Step 2: Asset Identification and Valuation
Each asset is identified, classified as marital or non-marital, and valued. Under §61.075(7), Fla. Stat., the court has discretion to set the valuation date based on what is just and equitable — different assets may be valued as of different dates depending on the circumstances. Real estate, retirement accounts, businesses, and investment portfolios each require different valuation methodologies and, in most cases, separate appraisals by qualified financial professionals.
Step 3: Negotiation and Mediation
Mediation is required in most Florida family law cases under Fla. Fam. L. R. P. 12.740 before the matter may proceed to trial. Spouses may also reach a property division agreement at any point through direct negotiation — that agreement is memorialized in a Marital Settlement Agreement (MSA) and submitted to the court for approval. A negotiated resolution gives both parties control over the outcome that litigation cannot.
Step 4: Marital Settlement Agreement or Trial
When the parties reach an agreement, the MSA is incorporated into the final judgment of dissolution. When they cannot, the matter proceeds to a final hearing where the judge applies the equitable distribution statute and makes binding determinations on every contested asset and liability.
How a Property Division Attorney Can Help
Unrepresented parties routinely make the same category of mistakes: accepting settlements without identifying all marital assets, agreeing to debt arrangements that leave them exposed to creditors, and failing to account for the tax consequences of keeping a pre-tax retirement account versus post-tax home equity. The attorneys at Kalish & Jaggars, PLLC identify assets that may be hidden or undervalued, engage qualified financial professionals for complex valuations, and structure settlements with the long-term financial picture in focus — not just what each spouse walks away with on paper, but what they retain after taxes and carrying costs.
Frequently Asked Questions
How is property divided in a divorce?
Florida courts divide marital property under the equitable distribution standard of §61.075, Fla. Stat. The court begins with a presumption of equal (50/50) division of all marital assets and liabilities, then evaluates whether any of the statutory factors under §61.075(1)(a)–(j) justify an unequal distribution. Non-marital assets are identified and set aside for their original owner before any division occurs.
What assets are protected in a divorce?
Non-marital assets — defined under §61.075(6)(b), Fla. Stat. — are generally protected from equitable distribution. This includes property acquired before the marriage, individual inheritances and gifts received during the marriage, and assets excluded from division by a valid prenuptial or postnuptial agreement under §61.079, Fla. Stat. The key variable is separation: these assets must have been kept entirely apart from marital funds at all times. Commingling, even partially, can eliminate the protected status of an otherwise non-marital asset.
Can a spouse take my business in a divorce?
The marital portion of a business is subject to equitable distribution — but not necessarily the entire business. Florida courts distinguish between enterprise goodwill (value tied to the business as a going concern) and personal goodwill (value tied to the owner’s individual reputation and relationships). Personal goodwill is not a marital asset subject to distribution under law. See Thompson v. Thompson, 576 So.2d 267 (Fla. 1991). Accurate valuation and tracing of any pre-marital capital contributions can significantly limit what portion of the business is divided.
What happens to the house in a divorce?
The marital home is handled in one of three ways: both parties sell the home and divide the net proceeds; one spouse buys out the other’s equity interest and refinances or assumes it solely in their name; or the sale is deferred — most commonly when minor children are involved — allowing the custodial parent to remain until a triggering event such as the youngest child reaching 18.
Does a living trust protect property in a divorce?
Not automatically. Assets held in a revocable living trust are generally still treated as marital property if they were funded with marital assets during the marriage. Because the grantor retains full control over a revocable trust, those assets remain reachable in equitable distribution proceedings. Irrevocable trusts established before the marriage and funded exclusively with separate property may be treated differently, but the analysis turns on when the trust was funded, what funded it, and whether any marital contributions were ever made. Under §61.075, Fla. Stat., classification follows how and when the asset was acquired — not the legal structure holding it.
Speak With a Property Division Lawyer
Property division in Florida involves time-sensitive legal deadlines and fact-specific determinations that directly affect long-term financial outcomes. The attorneys at Kalish & Jaggars, PLLC represent clients throughout Florida in equitable distribution matters — from straightforward asset splits to cases involving businesses, retirement accounts, and complex holdings. Contact a property division lawyer to discuss your rights and options under Florida’s equitable distribution law.
