Family law
Florida equitable distribution attorney
The court starts at equal, and someone has to justify moving off it
Florida does not divide everything you own. Fla. Stat. § 61.075 directs the court to set apart to each spouse that spouse’s nonmarital assets and liabilities, and then, in distributing what is marital, to begin with the premise that the distribution should be equal — unless there is a justification for an unequal distribution based on all relevant factors. So two questions decide these cases, in order: what is marital, and is there a reason to depart from equal. The statutory factors include each spouse’s contribution to the marriage, including as a homemaker and to the care and education of the children, the economic circumstances of the parties, the duration of the marriage, any interruption of careers or education, and the contribution of one spouse to the career or education of the other.
01 Quick answers
- Does Florida split everything 50/50?
- No. It divides marital assets and liabilities, and it begins at equal for those. Nonmarital property is set apart to the spouse who owns it before any division happens.
- What makes an asset marital?
- Broadly, what was acquired during the marriage, and the enhancement in value of nonmarital property caused by marital labor or funds. The date and the source are what matter.
- Can the split be unequal?
- Yes, where there is a justification based on all relevant factors. Equal is the starting premise, not a rule, and departing from it requires a reason the statute recognizes.
- Does being a homemaker count?
- Expressly. The statute lists the contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker, as the first factor.
- What about debt?
- Liabilities are distributed the same way as assets. A marital debt in one spouse’s name is still marital, and a creditor is not bound by how a divorce judgment allocates it.
- Does it matter who was at fault?
- Not for distribution. Florida is no-fault, and misconduct is not one of the distribution factors — though dissipation of marital assets is a different question.
02 Two questions
What is marital, and then whether equal is right
Property division in Florida is sequential, and most arguments happen in the first step rather than the second.
Section 61.075 directs the court to set apart to each spouse that spouse’s nonmarital assets and liabilities, and then, in distributing the marital ones, to begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.
So the fight is usually about characterization. A house owned before the marriage, a business started before it, an inheritance kept separate, a retirement account with contributions on both sides of the wedding — each of those can be partly marital and partly not, and the line is drawn by date and by source rather than by whose name is on it.
And the enhancement question catches people. Where nonmarital property increased in value because of marital labor or marital funds, that enhancement can itself be marital even though the underlying asset is not.
Set aside what is separate. Then start at equal for everything else.
03 Moving off equal
The factors that justify an unequal distribution
Equal is where the court starts, and the statute lists what can move it.
The contribution to the marriage by each spouse — and the statute says expressly that this includes contributions to the care and education of the children and services as homemaker. That is the first factor, not an afterthought.
The economic circumstances of the parties. The duration of the marriage. Any interruption of personal careers or educational opportunities of either party. And the contribution of one spouse to the personal career or educational opportunity of the other.
Read together, those describe a recognizable situation: one spouse steps back, the other’s earning capacity grows, and at the end of the marriage the paper assets do not reflect what each actually contributed. That is the case the factors exist to address.
What is not on the list is fault. Florida is no-fault, and an affair does not shift the distribution. Deliberate waste of marital assets is a separate question and is argued differently.
04 Debt
Liabilities divide too, and a creditor is not bound by the judgment
The statute speaks of assets and liabilities together, and the second half gets less attention than it deserves.
Marital debt is distributed like marital property, and a debt in one spouse’s sole name can still be marital if it was incurred during the marriage for a marital purpose.
The practical trap is that a creditor was not a party to your divorce. A judgment allocating a joint credit card to one spouse binds the spouses to each other; it does not stop the bank pursuing the other one. Where a joint obligation survives, the protection comes from closing, refinancing or indemnifying rather than from the allocation alone.
Which is why a complete list matters more than a clever argument. Most of the real risk in distribution is an account or an obligation nobody disclosed, discovered after the judgment.
05 The statutes
- Fla. Stat. § 61.075 Equitable distribution Nonmarital set apart, the premise of equal distribution, and the factors that justify departing from it.
- Fla. Stat. § 61.08 Alimony Decided alongside distribution, and affected by what each spouse receives.
Equitable distribution questions, answered
Is Florida a 50/50 state?
Not in the way people mean. Section 61.075 requires the court to set apart to each spouse that spouse’s nonmarital assets and liabilities first.
Then, in distributing what is marital, the court must begin with the premise that the distribution should be equal — unless there is a justification for an unequal distribution based on all relevant factors.
So the equal premise applies only to marital property, and it is a starting point rather than a rule.
How do I know whether something is marital?
Broadly by when it was acquired and from what source — assets and liabilities acquired during the marriage are generally marital, whatever name they are in.
Property owned before the marriage, and some inheritances and gifts to one spouse, are generally nonmarital if they were kept separate.
The complication is enhancement: where nonmarital property increased in value because of marital labor or marital funds, that increase can itself be marital. A business started before the marriage and built during it is the standard example.
What would justify an unequal split?
The statute lists the relevant factors, beginning with the contribution to the marriage by each spouse — including contributions to the care and education of the children and services as homemaker.
It also lists the economic circumstances of the parties, the duration of the marriage, any interruption of personal careers or educational opportunities, and the contribution of one spouse to the career or educational opportunity of the other.
Together those describe a marriage where one person stepped back and the other’s earning capacity grew, and the paper assets do not reflect what each contributed.
Does an affair change the property division?
No. Florida is a no-fault state and marital misconduct is not among the distribution factors.
What is different is dissipation — the deliberate waste of marital assets, for instance spending marital money on a relationship outside the marriage. That is argued as a distribution issue in its own right rather than as fault.
How is debt handled?
The same way as property. Section 61.075 speaks of distributing marital assets and liabilities, and a debt in one spouse’s sole name can still be marital.
The trap is that a creditor was not a party to your divorce. A judgment assigning a joint card to one spouse binds the spouses to each other; the bank can still pursue the other one.
Where a joint obligation survives the judgment, the real protection is closing the account, refinancing, or an indemnity — not the allocation by itself.
How are fees handled in a family case?
Consultations and attorney’s fees are billed hourly. Court costs and case expenses are billed separately, and payment plans are available.
There is no contingency fee in family work and no free consultation — those are injury terms and they do not apply here.
Consultations and attorney’s fees are billed hourly. Court costs and case expenses are billed separately. Payment plans are available.
06 Keep reading
Talk to Jose A. Dapena about your equitable distribution matter
You speak with the attorney who would handle the case, not an intake department. Practicing in Florida since 1998, Florida Bar number 152358.
Consultations and attorney’s fees are billed hourly. Court costs and case expenses are billed separately. Payment plans are available.