By Larry Schott, Florida Family Law Attorney  |  Schott & Tolchinsky, P.A.

Property division is where most contested divorces get complicated. Two people who might otherwise agree on everything else find themselves sitting across from each other unable to resolve who gets the house, who keeps the retirement account, or what happens to the business one of them built during the marriage. The numbers get personal fast.

Florida’s equitable distribution law provides a framework for resolving these disputes, but the framework leaves a lot of room for interpretation. Understanding how it works, and where the gray areas are, is the foundation for making smart decisions in your divorce.

1. What Equitable Distribution Means in Florida

Florida is an equitable distribution state. That phrase means something specific: marital assets and liabilities are divided fairly between the spouses, not automatically in half. Courts start with a presumption that equal division is appropriate, but equal is not guaranteed and equitable does not always mean 50/50.

The Florida Supreme Court and Florida appellate courts have consistently reinforced this framework. Equal division is the starting point, not the automatic outcome.

What this means practically is that if you want more than half, you need to show the court why. And if your spouse is asking for more than half, they need to do the same. Simply wanting more is not a basis for unequal distribution under Florida law.

2. Marital vs. Non-Marital Property

Before anything gets divided, the court has to classify every asset and liability as either marital or non-marital. Non-marital property stays with the spouse who owns it and is not divided. Only marital property goes into the equitable distribution calculation.

What counts as marital property

Under Florida Statute 61.075(6)(a), marital assets generally include everything earned, acquired, or accumulated by either spouse during the marriage, regardless of whose name is on the title. That includes income, real estate, investment accounts, retirement funds accrued during the marriage, and the appreciation in value of marital assets. It also includes interspousal gifts. Meaning, a gift from one spouse to the other during the marriage is a marital asset, not the separate property of the recipient.

Assets acquired after the date of the marriage are presumed to be marital unless proven otherwise. See Florida Statute 61.075(8).

What counts as non-marital property

Non-marital assets include property owned by either spouse before the marriage, assets received as gifts or inheritances from third parties during the marriage (kept separate from marital funds), income derived from non-marital assets if not treated as a marital resource, and assets excluded by a valid prenuptial or postnuptial agreement.

The commingling problem

The classification gets complicated when non-marital assets become mixed with marital ones. This is called commingling, and it is one of the most common sources of property disputes in Florida divorces. When a spouse deposits non-marital funds into a joint account, or uses their premarital savings to make improvements to the marital home, those funds can lose their separate character and become marital property because they are no longer traceable as distinct non-marital assets.

If you have non-marital assets you want to protect, keeping them demonstrably separate throughout the marriage is critical. Mixing them with marital funds is the fastest way to turn a separate asset into a marital one.

For a deeper discussion of these distinctions, see our guide: Marital vs. Non-Marital Property in Florida.

3. The Financial Disclosure Requirement

Florida law requires both parties in every dissolution of marriage to complete and exchange mandatory financial disclosure. Within 45 days of service of the petition, each spouse must file a sworn Family Law Financial Affidavit detailing their income, expenses, assets, and liabilities.

This is not optional and does not depend on whether the case is contested. Both parties must comply in every divorce.

Beyond the financial affidavit, the discovery process in a contested case allows each side to request documents from the other: bank statements, tax returns, retirement account records, credit card statements, business financial records, and anything else relevant to establishing the value of the marital estate. In cases involving complex assets, hidden income, or suspected asset transfers designed to reduce what is subject to distribution, a forensic accountant may be retained to examine the financial picture in detail.

4. How Courts Value Marital Assets

After classifying each asset as marital or non-marital, the court determines the value of each marital asset. The valuation date is within the judge’s discretion (different assets can be valued as of different dates) as the circumstances require. See See Florida Statute 61.075(7).

Real estate is typically valued by an appraisal. Business interests are commonly valued by a forensic accountant or business appraiser using one of several accepted valuation methods. Retirement accounts are generally valued based on account statements as of the relevant date. Vehicles, collectibles, and other personal property may be appraised or valued by agreement.

When the parties dispute the value of a significant asset, each side may retain their own expert. The court then weighs the competing opinions along with other evidence to reach a conclusion. In cases where the valuations are far apart, which is common in business disputes, the difference in expert testimony can be the most contested and expensive part of the entire proceeding.

5. Factors Courts Use to Determine Distribution

Once the marital estate is identified and valued, the court decides how to divide it. Florida law sets out a specific list of factors in § 61.075(1)(a)-(j) that a judge must consider. These factors can support an unequal distribution in either direction. Here is what courts look at:

• The contribution of each spouse to the marriage, including contributions as a homemaker and to the care and education of the children
• The economic circumstances of each party at the time of distribution
• The duration of the marriage
• Whether either party interrupted their career or educational opportunities to support the other spouse or to raise the children
• The contribution of each spouse to the acquisition, enhancement, and production of income from the marital assets
• Whether it is desirable to retain the marital home as a residence for any dependent child or for a party when it would be equitable and financially feasible
• The intentional dissipation, waste, depletion, or destruction of marital assets after filing or within two years before filing the petition for dissolution
• Any other factors necessary to do equity and justice between the parties

Courts rarely make large departures from equal division. The factors above are guideposts, not automatic adjustments. A spouse who stayed home to raise children is not automatically entitled to more than half, but that contribution is recognized and considered. A spouse who deliberately ran up debt or transferred assets before the divorce can face consequences in the distribution.

6. Dissipation and Waste of Marital Assets

Dissipation is one of the factors listed above and deserves its own attention because it comes up frequently and people often do not realize the consequences of their actions in the period leading up to a divorce.

Florida courts can hold a spouse accountable for intentional dissipation, waste, depletion, or destruction of marital assets. This applies both after the petition is filed and within two years before filing. See See Florida Statute 61.075(1)(i).

Common examples include spending marital funds on an affair, liquidating a retirement account and spending the proceeds, transferring assets to family members to remove them from the marital estate, running up significant debt for non-marital purposes, or allowing an insured asset to be destroyed without cause. When dissipation is proven, the court can award the innocent spouse a larger share of the remaining assets to offset what was lost.

Adultery by itself does not affect property division in Florida. But adultery funded with marital money is a different matter because that is considered dissipation and courts can and do address that issue.

7. The Marital Home

The family home is often the largest single asset in a divorce and the one that carries the most emotional weight. Florida courts handle it like any other marital asset. A home gets classified, valued, and distributed equitably but there are practical considerations that make it different from a bank account.

If the spouses cannot agree on what to do with the home, the most common outcome is a court order to sell it and divide the net proceeds equally. This is the cleanest solution because it converts the asset to cash that can be split without ambiguity.

When minor children are involved, a court may instead award one parent exclusive use and possession of the marital home until the youngest child reaches majority, recognizing the benefit of keeping the children in a stable environment. That parent typically receives a smaller share of the overall marital estate to offset the benefit of remaining in the home.

A buyout is another option: one spouse refinances the mortgage in their own name and pays the other spouse their equity share. This requires qualifying for financing independently, which is not always feasible, particularly when one spouse has been out of the workforce or has limited credit history.

For a full discussion of this topic, see our guide: What Happens to the House in a Florida Divorce.

8. Dividing Marital Debts

Equitable distribution covers liabilities as well as assets. Marital debts, those incurred during the marriage by either spouse, are subject to division, and the same equitable framework applies.

One important practical point: a divorce settlement agreement allocating debt between the parties does not change your obligation to the creditor. If the settlement says your spouse is responsible for the joint credit card balance and they fail to pay it, the creditor can still pursue you. The settlement gives you a legal remedy against your spouse, but it does not eliminate the joint liability from the creditor’s perspective.

For significant joint debts, the safest resolution is to pay off and close the account during the divorce, or to refinance it in the responsible spouse’s name alone, removing the other spouse from the obligation entirely.

9. Lump Sum vs. Installment Payments

When an asset cannot easily be divided or one spouse is buying out the other’s share over time, Florida law allows the court to order equalization payments in a lump sum or in installments.

Installment arrangements come with risk. If the paying spouse fails to make payments after the divorce is finalized, the receiving spouse has to return to court to enforce the order. When the amount is significant, it is worth negotiating security for the obligation like a lien on property, a life insurance policy, or other collateral so you have a remedy if the payments stop.

10. Settling Instead of Litigating

A marital settlement agreement lets both parties divide their assets and debts in whatever way makes sense for their situation, without a judge making the decisions for them. The agreement does not have to follow the statutory framework precisely. Meaning, spouses can agree to whatever terms work for them, as long as the agreement is voluntary, informed, and not unconscionable.

Settlement is almost always preferable to litigation. The cost of litigating property division through trial can easily exceed the value of what is being disputed, particularly when expert witnesses are involved. A negotiated resolution also gives both parties more certainty and more control over the outcome than leaving the decision to a judge who does not know your family, your finances, or what actually matters to you.

That said, do not negotiate a settlement without your divorce lawyer involved. The terms you agree to today are enforceable for years. An attorney reviews the agreement to make sure it accurately reflects what you intended, addresses issues you might not have considered, and is drafted in a way that holds up if circumstances change.

Related Articles:

• Marital vs. Non-Marital Property in Florida
• Is My Spouse Entitled to My Personal Injury Settlement?
• Case Examples of Alimony and the Marital Residence
• Prenuptial and Postnuptial Agreements in Florida
• Contested Divorce in Florida
• Step-by-Step Guide to Getting a Divorce in Broward County