How is property divided in a Florida divorce? Florida is an “equitable distribution” state, not a community property state. Under Florida Statute § 61.075, marital assets and debts are divided fairly between spouses, beginning with a presumption of an equal 50/50 split that the court may adjust based on specific statutory factors. Nonmarital property is set aside to the spouse who owns it and is not divided at all.

Few questions cause more anxiety in a Florida divorce than “who gets what.” At The Wheeler Firm, P.A., we walk clients in Okaloosa and Walton Counties through the equitable distribution framework so they understand—before negotiations begin—what is on the table and what is not.

Key Takeaways

• Marital vs. nonmarital is the threshold question. Only marital property is divided. Nonmarital property remains with its original owner.
• Equal is the starting point. Section 61.075(1) presumes a 50/50 split of marital assets and debts. The court may order an unequal distribution only when justified by enumerated statutory factors.
• The cut-off date is fixed by statute. Under § 61.075(7), the date for classifying assets is the earlier of a valid separation agreement or the filing of the divorce petition.
• Commingling can convert separate property to marital property. When nonmarital assets are mixed with marital ones such that they cannot be traced, courts may treat them as marital and divide them.

What is the difference between marital and nonmarital property in Florida?

Marital property generally includes everything acquired by either spouse during the marriage, regardless of whose name appears on the title. Nonmarital property includes assets owned before marriage, along with certain gifts and inheritances received during it. The distinction matters because only marital property is divided under § 61.075—each spouse keeps his or her nonmarital property in full.

Marital assets and liabilities include:

• Assets acquired and liabilities incurred during the marriage, individually or jointly
• The enhancement in value of nonmarital assets resulting from marital labor or funds
• Interspousal gifts made during the marriage
• Vested and nonvested benefits accrued during the marriage in pensions and retirement plans

Nonmarital assets and liabilities include:

• Assets acquired and liabilities incurred before the marriage, plus assets acquired in exchange for them
• Assets acquired by noninterspousal gift, bequest, devise, or descent during the marriage
• Income from nonmarital assets, unless the parties have treated it as marital
• Assets the parties have agreed in a valid written agreement to keep separate

How does the cut-off date work under Section 61.075?

The “cut-off date” is the day Florida courts use to draw the line between marital and nonmarital property. Under § 61.075(7), it is the earliest of a valid separation agreement, another agreement that fixes the date, or the filing of the petition for dissolution. Assets acquired or debts incurred after that date are generally nonmarital.

Two different dates matter in every case:

• Classification date. The cut-off date set by statute. It controls whether an asset is marital or nonmarital.
• Valuation date. Set in the judge’s discretion under § 61.075(7). It is the date used to determine how much an asset is worth, which may differ from the classification date—and may even differ from asset to asset. A retirement account, for example, might be valued near trial, while a home is valued at separation.

Knowing both dates is critical because account balances, business values, and home equity can shift dramatically between the petition and the final judgment.

How does commingling affect property in a Florida divorce?

Commingling occurs when nonmarital property is mixed with marital property so the original asset can no longer be traced. When this happens, Florida courts may reclassify the entire asset as marital. Common examples include depositing inherited funds into a joint account, using marital income to pay down a premarital mortgage, or retitling a separately owned asset in both spouses’ names.

To determine whether nonmarital status has been preserved, courts typically look at:

• Traceability. Whether the nonmarital portion can be documented through bank statements, deeds, or other records.
• Use of marital funds. Whether marital money was used to maintain or improve the asset.
• Titling. Whether the asset was retitled jointly during the marriage, which often creates a presumption of an interspousal gift.
• Active vs. passive appreciation. Passive appreciation, such as ordinary market growth, generally remains nonmarital. Active appreciation tied to marital labor is marital under § 61.075(6)(a)1.b.

When will a Florida court order an unequal distribution?

Section 61.075(1) lists the factors that justify departing from a 50/50 split. These include each spouse’s contribution to the marriage, the economic circumstances of the parties, the duration of the marriage, interruption of personal careers, contributions to the other spouse’s career or education, intentional dissipation of marital assets within the two years before filing, and the desirability of retaining the marital home for a dependent child. The court must make specific written findings to support any unequal distribution. In practice, unequal distributions are rare because the presumption that marital assets and liabilities should be divided equally is very strong.

Contact The Wheeler Firm

At The Wheeler Firm, P.A., we help clients in Okaloosa and Walton Counties protect what is legally and equitably theirs. If you are facing a Florida divorce involving real estate, retirement or other accounts, a business, personal property, military pensions, or premarital assets, contact us today at (850) 613-6923 to schedule a consultation. We serve families throughout Okaloosa and Walton Counties from our offices in Niceville and Santa Rosa Beach.