Florida Equitable Distribution — How Property and Debt Are Divided in a Divorce

The short answer

Equitable means fair, not automatically equal — but Florida law tells the judge to begin at equal. A spouse who wants an unequal split has to justify it using the factors in section 61.075(1). In practice most Florida divorces end close to a 50/50 division of the marital estate, with adjustments made asset by asset rather than through one lopsided result.

Marital versus non-marital

The first job in every case is sorting the estate into two piles. Only the marital pile gets divided.

• Marital — assets and debts acquired by either spouse during the marriage, whoever's name is on them.
• Marital — the increase in value of a non-marital asset where that increase came from marital money or from either spouse's work during the marriage.
• Marital — gifts between spouses during the marriage, and all vested and non-vested retirement benefits earned during the marriage.
• Non-marital — anything owned before the marriage, plus inheritances and gifts from third parties, kept separate.
• Non-marital — assets excluded by a valid written agreement, and income from non-marital assets unless the couple treated that income as marital.

When the clock stops

The cut-off date for classifying assets and debts is the earlier of the date the parties signed a valid separation agreement or the date the petition for dissolution of marriage was filed. Value is a separate question: the court picks the valuation date it finds just and equitable for each asset, which is often the filing date for accounts and a date closer to trial for a house or a business.

When a judge splits things unequally

Section 61.075(1) lists the reasons a court can move off an equal split. They include each spouse's contribution to the marriage as homemaker and parent as well as earner, the economic circumstances of each, the length of the marriage, one spouse's interruption of a career or education, either spouse's contribution to the other's career or education, the desirability of keeping an asset such as a business intact and free from interference, whether one spouse intentionally wasted or destroyed marital assets within the two years before filing, and any other factor the court needs in order to do equity between the parties.

The marital home

Florida courts have three basic options: sell the home and split the net proceeds, award it to one spouse who buys out the other's share, or grant one parent exclusive use and possession for a period — often until the youngest child finishes high school — with the sale deferred. Exclusive use has to be justified, usually by the children's need for stability, and the order should say who pays the mortgage, taxes, insurance and repairs in the meantime, and how those payments get credited when the house is finally sold.

Retirement accounts and pensions

The portion of a 401(k), IRA, pension or deferred compensation plan earned during the marriage is a marital asset even though only one spouse's name is on it. Splitting most employer plans requires a Qualified Domestic Relations Order — a separate court order the plan administrator will accept. It is worth comparing the after-tax value of retirement money against cash or home equity before trading one for the other, because a dollar in a pre-tax account is not the same as a dollar in a bank account.

Debts, including debt in one name

Debt is divided the same way as assets: a credit card, car loan or tax bill run up during the marriage is usually marital even if only one spouse signed for it. A Florida judgment binds the two spouses to each other — it does not bind the lender. If the court orders one spouse to pay a joint card and they do not, the bank can still pursue the other. The practical protections are refinancing, closing joint accounts, and indemnification language written into the judgment.

Wasted assets

If one spouse intentionally destroyed, wasted or depleted marital assets after the filing, or within two years before it, the court can charge the value back to that spouse as though the asset still existed. Gambling losses, spending on an affair and deliberately running a business into the ground are the recurring examples. It takes proof of intentional misconduct, not simply poor decisions or ordinary market losses.