Overview
Florida is an equitable distribution state, and its statute creates a presumption that marital assets and liabilities should be divided equally between spouses unless there is a justification for an unequal distribution. Florida Statutes § 61.075 sets out a comprehensive list of factors courts may consider when departing from equal division, including each spouse’s contributions, the duration of the marriage, and economic circumstances. Florida adopted a version of the Uniform Premarital Agreement Act under § 61.079.
What Counts as Marital Property?
Marital assets in Florida include all assets acquired and liabilities incurred during the marriage, other than by gift or inheritance. This includes wages, real property purchased during the marriage, appreciation on marital assets through marital efforts or funds, and interspousal gifts. Retirement benefits earned during the marriage and business interests grown with marital funds are also marital assets subject to equitable distribution.
What Stays Separate?
Nonmarital assets in Florida include property owned before the marriage, gifts and inheritances received by one spouse individually, income from nonmarital assets (provided it is not commingled), and property designated as nonmarital in a valid agreement. Appreciation on nonmarital assets due purely to market forces — with no marital contribution — also remains nonmarital. The key risk is commingling, which can transform nonmarital assets into marital ones.
Prenuptial Agreements in Florida
Florida’s premarital agreement statute, Florida Statutes § 61.079, is closely modeled on the UPAA. A prenup must be in writing and signed by both parties before marriage. It is not enforceable if a party proves involuntary execution, unconscionability at the time of execution combined with inadequate disclosure, or lack of voluntary waiver of disclosure rights. Florida does not require a waiting period or independent counsel, though both are strongly recommended.
Key Considerations
- Florida begins equitable distribution from an equal-split presumption, which is more defined than many states — but courts can and do deviate based on statutory factors.
- Florida’s large retiree and investor population means many spouses hold significant premarital investment accounts; a prenup is the clearest way to protect these.
- Enhancement of nonmarital property through marital funds or effort creates a marital interest in that property even if the underlying asset was premarital.
- Alimony is a separate determination in Florida and can be addressed in a prenup, subject to the court’s power to refuse unconscionable spousal support waivers.
Key Statutes
- Florida Statutes § 61.075 (equitable distribution of marital assets and liabilities)
- Florida Statutes § 61.079 (premarital agreements)
This is educational content, not legal advice. Consult a licensed Florida family law attorney for guidance specific to your situation.