F.S. 61.075: How Florida Courts Divide Marital Assets and When the Split Is Unequal

Every contested divorce filed in Miami-Dade County runs through the same statute when the parties cannot agree on property. Section 61.075, Florida Statutes, tells the judge how to sort assets and debts into marital and nonmarital categories, how to value them, and how to divide what is marital. The statute begins with a presumption that the marital estate should be split equally. It then lists the reasons a court may depart from that presumption and award one spouse more than half.

For a spouse who owned a condominium before the wedding, built a business during the marriage, or watched a partner drain a brokerage account in the months before filing, the difference between an equal and an unequal distribution can amount to hundreds of thousands of dollars. This page explains how the statute works, what a Miami family court judge is required to find, and where the fights usually happen.

The Starting Point: Equal Division Under F.S. 61.075(1)

Section 61.075(1) directs the court to "set apart to each spouse that spouse's nonmarital assets and liabilities" and then to distribute the marital assets and liabilities between the parties. 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."

Two points follow from that language. First, nonmarital property is not divided at all. It goes back to the spouse who owns it. Second, the equal split is a presumption, not a rule. A judge who awards 60 percent to one spouse must explain why, and the explanation must tie back to the factors listed in the statute.

Step One: Classifying Assets as Marital or Nonmarital

Classification comes before division. Section 61.075(6)(a)1. defines marital assets and liabilities to include:

• Assets acquired and liabilities incurred during the marriage, whether titled individually or jointly. A car bought in one spouse's name in year five of the marriage is marital. So is the credit card balance run up by one spouse alone.
• Enhancement in value of nonmarital assets resulting from the efforts of either party during the marriage or from the expenditure of marital funds. A premarital rental property that one spouse renovated with money from a joint account has a marital component.
• Paydown of mortgage principal on nonmarital real property using marital funds, together with a portion of the passive appreciation in that property, calculated under the formula discussed below.
• Interspousal gifts made during the marriage. A watch one spouse gave the other for an anniversary is marital, even though the recipient thinks of it as hers.
• Retirement benefits accrued during the marriage, whether vested or not, including pensions, 401(k) plans, deferred compensation, and annuities.

Section 61.075(6)(b) defines nonmarital assets and liabilities to include:

• Assets acquired and liabilities incurred by either party before the marriage, and anything acquired in exchange for them.
• Assets acquired separately by gift from a third party, bequest, devise, or descent, and anything acquired in exchange for them. Our page on inheritance and divorce in Florida covers how an inheritance keeps or loses this status.
• Income from nonmarital assets during the marriage, unless the parties "treated, used, or relied upon" that income as a marital asset.
• Assets and liabilities excluded by a valid written agreement, such as a prenuptial or postnuptial agreement.
• Any liability incurred through forgery or the unauthorized signature of one spouse signing the other's name. That debt belongs only to the forger.

The Presumptions That Decide Close Cases

Section 61.075(8) provides that all assets acquired and liabilities incurred after the date of marriage "and not specifically established as nonmarital assets or liabilities are presumed to be marital." The spouse claiming an asset is nonmarital carries the burden of proving it.

Jointly titled property carries a heavier presumption. Under section 61.075(6)(a)2. and 3., real property and personal property held by the spouses as tenants by the entireties, whether acquired before or during the marriage, is presumed marital. A spouse who put a premarital home into joint names during the marriage and now wants it back must overcome the gift presumption, and section 61.075(6)(a)4. requires that showing by clear and convincing evidence. In practice, that is a difficult standard to meet. Depositing separate funds into a joint account raises related problems, which we address on our page about commingled assets in a Florida divorce.

Step Two: The Cut-Off Date and Valuation Dates Under F.S. 61.075(7)

The statute fixes the date on which the marital estate closes. Under section 61.075(7), the cut-off date for identifying marital assets and liabilities is the earliest of: the date the parties enter into a valid separation agreement, another date expressly set by that agreement, or the date the petition for dissolution is filed. Anything acquired after the cut-off date is presumptively the acquiring spouse's separate property.

Valuation is handled differently. The statute states that the date for determining the value of assets and the amount of liabilities is "the date or dates as the judge determines is just and equitable under the circumstances," and that "different assets may be valued as of different dates." A Miami judge might value a brokerage account as of the filing date to prevent one spouse from benefiting from the other's post-filing trading, while valuing the marital home as of the trial date because market appreciation in Miami-Dade is passive and benefits both parties.

The practical lesson is that the filing date matters. A spouse who expects a large bonus or a stock vesting event should understand that filing before or after that event changes which column the asset lands in.

Step Three: The Passive Appreciation Formula for a Premarital Home

Section 61.075(6)(a)1.c. codifies a formula for one of the most common disputes in Miami divorces: what happens when one spouse owned a home before the marriage and marital funds paid down the mortgage. The statute treats two things as marital. The first is the principal paid down with marital funds. The second is a share of the passive appreciation in the property, calculated by multiplying the passive appreciation by a coverture fraction. The numerator of that fraction is the total mortgage principal paid from marital funds during the marriage. The denominator is the value of the property on the date of the marriage. The total marital portion cannot exceed the net equity in the property on the valuation date.

Worked Example

Assume a spouse bought a Brickell condominium two years before the marriage. On the wedding date, the unit was worth $400,000 and carried a $300,000 mortgage. During the marriage, payments from the couple's joint checking account reduced the principal by $100,000. On the valuation date, the unit is worth $700,000 and the mortgage balance is $200,000, for net equity of $500,000. No marital labor or capital improvements contributed to the increase; the appreciation is passive.

1. Passive appreciation: $700,000 minus $400,000 equals $300,000.
2. Coverture fraction: $100,000 in marital paydown divided by $400,000 date-of-marriage value equals 25 percent.
3. Marital share of appreciation: 25 percent of $300,000 equals $75,000.
4. Total marital portion: $100,000 in paydown plus $75,000 in appreciation equals $175,000. That is below the $500,000 equity cap, so the full amount is marital.
5. Nonmarital portion: $500,000 equity minus $175,000 equals $325,000, set aside to the owning spouse.

Under an equal distribution, the non-owning spouse would receive $87,500 as his or her half of the marital portion. If the owning spouse also used marital funds for a kitchen renovation that added value, that active enhancement is added to the marital column under section 61.075(6)(a)1.b. The statute also allows the court to adjust the result if the mortgage was paid entirely from one spouse's nonmarital funds during the marriage, so the source of each payment must be traced with bank records.

When the Split Is Unequal: The Ten Factors in F.S. 61.075(1)(a)-(j)

A judge may depart from an equal division only with justification grounded in the statutory factors. Those factors are:

• (a) Contribution to the marriage, including care and education of the children and services as homemaker. A spouse who left the workforce to raise children in Coconut Grove made a contribution the statute recognizes on equal footing with the wage-earning spouse.
• (b) Economic circumstances of the parties. A large disparity in earning capacity can support giving the lower-earning spouse a greater share of liquid assets.
• (c) Duration of the marriage. Short marriages more often see courts trying to return each spouse to a premarital position.
• (d) Interruption of personal careers or educational opportunities of either party.
• (e) Contribution of one spouse to the career or education of the other. A spouse who supported the household while the other completed medical residency at Jackson Memorial has a claim under this factor.
• (f) Desirability of retaining an asset intact, including a business, corporation, or professional practice, free from any claim by the other spouse. This factor rarely produces an unequal split on its own; it usually produces an equalizing payment instead.
• (g) Contribution of each spouse to acquisition, enhancement, and production of income, and to incurring liabilities, for both marital and nonmarital property.
• (h) Desirability of retaining the marital home for a dependent child, when it is equitable, in the child's best interest, and financially feasible to maintain the residence until the child is emancipated or exclusive possession is otherwise terminated.
• (i) Intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years before filing.
• (j) Any other factor necessary to do equity and justice between the parties.

Judges in the Eleventh Judicial Circuit apply these factors conservatively. Most contested cases still end in a roughly equal division. Unequal awards tend to appear where one factor is strongly present, most often dissipation, a marked disparity in earning ability at the end of a long marriage, or one spouse's nonmarital funds having been used to pay off marital debt.

Dissipation and the Two-Year Lookback

Factor (i) is the most frequently litigated ground for an unequal split. Dissipation means intentional misconduct that depletes the marital estate for a purpose unrelated to the marriage: gambling losses, spending on an extramarital relationship, transferring funds to a relative to hide them, or destroying property. Ordinary spending, poor investments, and business losses do not qualify. The conduct must be intentional and must occur after the petition is filed or within the two years before filing.

Worked Example

A husband files for dissolution on March 1. Discovery shows that between September of the prior year and the filing date, the wife withdrew $60,000 from a jointly held money market account and spent it at casinos. The balance on the filing date is $40,000. Under factor (i), the court may treat the dissipated $60,000 as if it were still in the estate and assign it to the wife. The reconstructed marital account is $100,000. The husband receives the remaining $40,000 plus a $10,000 credit from other assets, and the wife is charged with the $60,000 she spent. The result is a nominally equal division of $50,000 each, with the wife's half consisting mostly of money that is gone.

Proving dissipation requires records. Bank statements, casino win-loss reports, and credit card itemizations are obtained through the mandatory disclosure and discovery process, which we describe on our page covering the Miami divorce discovery process. The spouse alleging dissipation bears the burden of proof. The spouse defending against the claim can rebut it by showing the funds were spent on legitimate marital or living expenses.

Businesses, Professional Practices, and Goodwill

A closely held business started or grown during the marriage is a marital asset, and its value must be determined. Section 61.075(6)(a)1., as amended in 2024, directs that goodwill attributable to the personal skill or reputation of the owning spouse is not part of the marital estate, while enterprise goodwill that would transfer to a hypothetical buyer is. A solo dental practice in Kendall may have substantial personal goodwill and little enterprise goodwill. A distribution company with contracts, employees, and a customer base that would survive a change in ownership is the opposite.

Factor (f) allows the court to award the business entirely to the operating spouse. The other spouse is then compensated through offsetting assets or, under section 61.075(10), a monetary payment in a lump sum or installments. Section 61.075(2) provides that when the court orders a cash payment to effect equitable distribution, the full amount vests when the judgment is entered and does not terminate on remarriage or death of either party. It is treated as a debt owed by the obligor or the obligor's estate. Collection problems after judgment are addressed on our page about enforcing a Florida divorce judgment.

Retirement Accounts and Pensions

Retirement benefits accrued during the marriage are marital under section 61.075(6)(a)1.e., whether or not they have vested. Contributions made before the marriage, and passive growth on those premarital contributions, are nonmarital, but the burden of segregating them falls on the participant spouse. For a 401(k), that usually means producing the statement closest to the wedding date and tracing growth. For a defined benefit pension, the marital portion is typically expressed as a fraction of the monthly benefit and divided through a qualified domestic relations order entered after the final judgment.

What the Final Judgment Must Contain

Section 61.075(3) requires that in a contested dissolution, the distribution be "supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors" in subsection (1). The judgment must include specific written findings on:

• Clear identification of nonmarital assets and ownership interests.
• Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse receives each.
• Identification of marital liabilities and designation of which spouse is responsible for each.
• Any other findings necessary to advise the parties or a reviewing court of the trial court's rationale.

A judgment that awards an unequal split without these findings is vulnerable on appeal to the Third District Court of Appeal. For the litigant, this requirement has a practical side: the evidence presented at trial must give the judge what she needs to make each finding. A spouse who wants a home valued at a particular figure needs an appraisal, not an opinion.

Interim Partial Distribution During the Case

Miami divorces involving significant assets can take a year or more to reach final hearing. Section 61.075(5) allows either party to file a sworn motion for an interim partial distribution before the final judgment. The motion must identify the asset sought to be distributed and show good cause. Courts have used this provision to release funds for attorney's fees, to allow the sale of a jointly owned property that neither party can afford to carry, or to divide an account that is plainly marital so that both spouses have working capital during the litigation. Any interim award is credited against the party's final share.

Equitable Distribution Comes Before Alimony

Section 61.075(9) provides that the court may distribute marital assets and liabilities without regard to alimony, and that after determining equitable distribution, the court "shall consider whether a judgment for alimony shall be made." The order matters. A spouse who receives income-producing assets in the distribution may have less need for support. A spouse who receives the marital home and its mortgage may have more. The interaction between property division and support is discussed on our page covering the types of Florida alimony under F.S. 61.08.

How the Process Works in Miami-Dade Family Court

Dissolution cases in Miami-Dade County are heard in the Family Division of the Eleventh Judicial Circuit. Within 45 days of service of the petition, Florida Family Law Rule of Procedure 12.285 requires each party to serve a financial affidavit and the mandatory disclosure documents: tax returns for the past three years, pay stubs, bank and brokerage statements for the past twelve months, retirement account statements, deeds, and loan applications. These documents form the foundation for classification and valuation. The court will typically order mediation before setting a trial date, and most equitable distribution disputes settle there, often with a schedule attached to the marital settlement agreement that lists each asset, its agreed value, and the spouse who takes it.

For cases that do not settle, the trial is an evidentiary hearing at which each side presents appraisals, forensic accounting, and testimony on the statutory factors. The judge then enters a final judgment containing the findings required by section 61.075(3).

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].