Florida divides only marital property in a divorce, splitting it equitably under Fla. Stat. § 61.075 — usually 50/50. Separate property, including assets owned before marriage, inheritances, and gifts, stays with the original owner. The court first classifies each asset, then sets aside nonmarital property before dividing the marital estate. Florida charges a $408 filing fee as of March 2026.
Understanding the difference between marital and separate property in Florida determines who keeps what after a divorce. This distinction controls how the court divides homes, retirement accounts, businesses, and debts. Florida classifies every asset as either marital or nonmarital before any division occurs, and a single classification error can shift tens of thousands of dollars. This guide explains Florida's equitable distribution system, how commingling converts separate property into marital property, and the specific statutes that govern property division in 2026.
Key Facts: Florida Property Division
| Factor | Florida Rule |
|---|---|
| Filing Fee | $408 plus $10 summons (as of March 2026) |
| Waiting Period | No mandatory waiting period after filing |
| Residency Requirement | One spouse must reside in Florida 6 months before filing (F.S. § 61.021) |
| Grounds | No-fault — marriage irretrievably broken (F.S. § 61.052) |
| Property Division Type | Equitable distribution (F.S. § 61.075) |
What Is Marital Property in Florida?
Marital property in Florida includes all assets acquired and debts incurred by either spouse during the marriage, regardless of whose name is on the title, under Fla. Stat. § 61.075(6)(a). The law presumes any asset acquired after the wedding date is marital, and the spouse claiming otherwise carries the burden of proof. This presumption covers wages, real estate, and retirement contributions made during the marriage.
The statute defines marital assets broadly to prevent spouses from hiding income behind individual accounts. Marital property includes assets titled in one spouse's name alone, jointly held property, vested and nonvested retirement and pension benefits, and the increase in value of nonmarital assets caused by either spouse's labor or marital funds during the marriage. For example, if one spouse owned a rental property before marriage but both spouses paid down the mortgage with joint income, the principal reduction and a portion of any passive appreciation become marital property subject to division. Florida courts apply a coverture fraction to calculate the marital share of that passive appreciation, ensuring the marital estate captures value created during the union.
What Counts as Separate Property in Florida?
Separate property in Florida — called nonmarital property — includes assets owned before marriage, inheritances received by one spouse, gifts from third parties, and property excluded by a valid prenuptial agreement, under Fla. Stat. § 61.075(6)(b). Courts set aside nonmarital property entirely; it is not divided. The owning spouse keeps 100% of qualifying separate assets.
Florida law identifies five categories of nonmarital property. First, assets acquired by either party before the marriage remain separate. Second, assets acquired in exchange for premarital property keep their nonmarital character. Third, income derived from nonmarital assets stays separate unless the spouses treated it as a marital asset. Fourth, inheritances and gifts received by one spouse individually — even during the marriage — are nonmarital. Fifth, any asset excluded from the marital estate by a valid written agreement under Fla. Stat. § 61.079 remains separate. The critical requirement across all categories is documentation: the spouse asserting that an asset is separate property must trace it to a nonmarital source with records, statements, or deeds. Without proof, Florida's presumption treats the asset as marital and subject to equitable distribution.
How Commingling Converts Separate Property to Marital Property
Commingling occurs when a spouse mixes separate property with marital assets so thoroughly that the separate portion can no longer be traced, converting protected nonmarital property into divisible marital property. The most common example involves depositing an inheritance into a joint bank account used for household expenses. Once funds lose their traceable identity, Florida courts treat the entire account as marital.
The analysis turns on traceability, not the act of mixing alone. If a spouse deposits a $50,000 inheritance into a joint account but keeps clear records showing the funds were never spent and the balance never dropped below $50,000, a Florida court may preserve the nonmarital character. By contrast, if that inheritance funds vacations, mortgage payments, and groceries over several years, the separate identity disappears and the money becomes marital. Real property carries the same risk: adding a spouse's name to a deed of a premarital home can constitute an interspousal gift, transforming separate property into marital property. The 2024 amendment to Fla. Stat. § 61.075 clarified that interspousal gifts of real property during the marriage require a writing complying with the deed-execution requirements of Fla. Stat. § 689.01, narrowing accidental transmutation through title changes alone.
Transmutation of Property in Florida Divorce
Transmutation in Florida happens when an asset's legal character changes from separate to marital — or marital to separate — through the conduct or intent of the spouses, most often by retitling property or actively managing a nonmarital asset with marital labor. Unlike commingling, which results from mixing funds, transmutation results from a deliberate or recognized change in ownership character. Both outcomes expand the marital estate.
Florida recognizes two primary transmutation pathways. The first is the gift presumption: when one spouse places jointly held title on previously separate property, courts presume a gift to the marriage absent contrary evidence. After the 2024 statutory revision, real-property gifts require a compliant writing, but personal property and financial accounts can still transmute through joint titling. The second pathway is active appreciation. When a spouse's effort or marital funds enhance the value of a nonmarital asset — for instance, working in a premarital business or renovating a separately owned property with joint income — the enhancement becomes marital under Fla. Stat. § 61.075(6)(a)(1)(b). The 2024 amendments further codified enterprise goodwill in a closely held business as a marital asset, distinguishing it from personal goodwill, which remains tied to the owner spouse and stays nonmarital.
The Three-Step Equitable Distribution Process
Florida courts follow a three-step process to divide property: first classify each asset as marital or nonmarital, then value the marital assets as of a court-determined date, and finally distribute the marital estate equitably, starting from a presumption of equal 50/50 division under Fla. Stat. § 61.075(1). Equitable means fair, not automatically equal, so judges retain discretion to order unequal splits when justified.
Classification fixes the cutoff date as the earlier of a valid separation agreement or the filing of the divorce petition; assets acquired after that date are generally nonmarital. Valuation occurs on the date the judge determines is just and equitable, which gives courts flexibility when asset values fluctuate between separation and trial. Distribution begins at equal division, but Fla. Stat. § 61.075(1) lists factors that justify departure, including each spouse's economic circumstances, contribution to the marriage, duration of the marriage, interruption of careers, and intentional dissipation of marital assets within two years before filing. A spouse who drained marital accounts on an affair or gambling, for example, may receive a smaller share to compensate the other party.
Filing for Divorce and Property Division in Florida
To divide property in a Florida divorce, one spouse must have resided in the state for 6 months before filing the petition under Fla. Stat. § 61.021, and the filing spouse pays a $408 court fee plus a $10 summons charge as of March 2026. Florida is a no-fault state, so the only required ground is that the marriage is irretrievably broken under Fla. Stat. § 61.052.
Divorce petitions are filed in the circuit court of the county where either spouse resides. The 6-month residency rule is jurisdictional — without it, a Florida court cannot decide the case — and residency must be corroborated by a Florida driver's license, voter registration, state ID, or a third party's affidavit under Fla. Stat. § 61.052(2). Each spouse must file a financial affidavit and a complete inventory of marital and nonmarital assets, which forms the foundation for classification. Filing fees are set by Fla. Stat. § 28.241 and apply across all 67 counties, though some clerks add local surcharges of $5 to $55. Households earning below 200% of the federal poverty level may qualify for a fee waiver, which covers the $408 filing fee and most court costs. (As of March 2026. Verify with your local clerk.)
2024 Statutory Changes Affecting Property Classification
The Florida Legislature amended Fla. Stat. § 61.075 in 2024, changing how courts classify business goodwill and interspousal real-property gifts, with the updated framework carrying into 2026. The changes codified enterprise goodwill as a marital asset and tightened the writing requirement for transferring separate real property to marital status, reducing accidental transmutation.
Under the amended statute, business valuation now distinguishes two types of goodwill. Enterprise goodwill — value that exists independently of the owner's personal reputation or skill — is a marital asset subject to equitable distribution. Personal goodwill — value tied solely to one spouse's individual reputation, relationships, or talent — remains nonmarital and is excluded from division. This distinction matters most for professionals such as doctors, dentists, and lawyers whose practices blend both forms of goodwill. The second major change addresses interspousal gifts: a gift of real property between spouses during marriage now requires a writing that satisfies the deed-execution standards of Fla. Stat. § 689.01. Before this change, informal conduct or testimony could establish that separate real estate had become marital; the writing requirement now provides certainty and protects premarital property owners from inadvertent transmutation.
Marital vs. Separate Property: Side-by-Side Comparison
| Asset Type | Classification | Divided in Divorce? |
|---|---|---|
| Home purchased during marriage | Marital | Yes — equitable split |
| Home owned before marriage (no joint title) | Separate | No — owner keeps it |
| Inheritance kept in separate account | Separate | No |
| Inheritance deposited into joint account | Marital (commingled) | Yes |
| Retirement contributions during marriage | Marital | Yes |
| Retirement balance earned before marriage | Separate | No |
| Gift from a third party to one spouse | Separate | No |
| Enterprise goodwill in a business | Marital (post-2024) | Yes |
| Personal goodwill in a business | Separate | No |
| Debt incurred during marriage | Marital | Yes — divided equitably |
Protecting Separate Property in a Florida Divorce
To protect separate property in Florida, a spouse should keep nonmarital assets in individually titled accounts, never deposit them into joint accounts, maintain documentation tracing each asset to its nonmarital source, and avoid using marital income to improve separate assets. A valid prenuptial or postnuptial agreement under Fla. Stat. § 61.079 offers the strongest protection by defining property rights in advance.
The single most effective safeguard is segregation. Separate funds must stay entirely apart from marital money at all times, because partial commingling can eliminate protected status. A spouse who inherits money should open a new individual account and never use it for household expenses or joint purchases. Documentation is equally critical: bank statements, deeds, gift letters, and pre-marriage account records create the paper trail Florida courts require to overcome the marital presumption under Fla. Stat. § 61.075(6). For premarital real estate, the owner should avoid adding a spouse to the deed and should fund improvements from separate, not marital, accounts. When a couple wants certainty, a written marital agreement removes the classification question entirely by specifying which assets remain nonmarital regardless of later conduct.