If you are getting divorced in Florida and you walked in here thinking it is going to be a 50/50 split, somebody has lied to you. Probably not on purpose, and probably not anybody who works in family law for a living, but somebody. Maybe your brother-in-law. Maybe a podcast. Maybe a friend who got divorced in California fifteen years ago and confused things.
Florida is not a community property state. It is an equitable distribution state. Those are two different things, and the difference is most of what we end up arguing about in a contested divorce around here.
So before we get any further into this, let me say plainly what the statute actually says, and then talk about what that means in a real Volusia County family law case, which is rarely as clean as people want it to be.
What The Law Actually Says, In Twelve Words
Florida Statute 61.075 starts with a presumption that the marital estate gets divided equally. That is the twelve words. Equal distribution is where the judge starts.
But the same statute then lists ten factors a judge is supposed to weigh, and any one of them can move the needle off equal. How long you were married. The economic circumstances of each spouse coming out of it. Whether one of you put a career on pause to support the other one or to raise children. Whether one of you went out and intentionally wasted marital assets in the run-up to the divorce. There is more. Read the statute if you want all of it. Most clients do not, and that is fine.
What that means in practice is that the presumption of equal distribution is a soft presumption. It is where a judge starts, not where the judge has to land. The judges I have practiced in front of in Volusia County for forty years are perfectly willing to move that line based on the facts in front of them, sometimes only a little and once in a while quite a lot.
The Bigger Fight Is Almost Always About What Counts
Here is the part people do not see coming. Before a judge can divide anything, they have to figure out what is in the marital estate to be divided. That is where most divorces in Volusia County actually go sideways.
Marital assets are anything either of you acquired during the marriage with marital money. Non-marital assets are what you brought in with you, inheritances received during the marriage, gifts that one spouse received from somebody who was not the other spouse, and some types of personal injury settlements. The statute lists a few more categories. None of which sound complicated until you actually try to apply them to a house, a brokerage account, or a small business that existed before the wedding.
Say you owned a house before the marriage and you paid for it in full. Non-marital on its face. Except during the marriage you both paid for a new roof, remodeled the kitchen, replaced the windows, and at some point refinanced the mortgage into both your names. The house is what we call comingled now. Part of its appreciation is marital. Working out which part requires a tracing analysis, sometimes an expert witness, and the number that comes back is almost never what either spouse was hoping for.
Brokerage accounts go through the same kind of analysis when one spouse had them coming in but kept contributing during the marriage. Retirement accounts too. A business one spouse started before the wedding and then ran during the marriage will often have its increase in value treated as partly marital, even if the original ownership is not. None of that is intuitive going in, and all of it gets argued about at some length.
I will tell you honestly, we spend more time on the marital-versus-non-marital question than on anything else in family law practice. The dollar figure on the back end of a case has moved a hundred thousand dollars or more, plenty of times, based on whether a Daytona Beach divorce lawyer could trace something out of the marital estate.
Why The Long Marriage Cases Are Their Own Animal
If you have been married for thirty or forty years, the line between marital and non-marital has often disappeared completely. Bank accounts opened, closed, and merged into other accounts over decades. Houses sold and replaced. Retirement plans rolled over so many times that nobody has the original statements. By the time you sit down with a family law attorney to actually look at it, the pile is, for all practical purposes, one pile.
Florida law in long marriages tends to push toward equal distribution, partly because the comingling is so total that picking it apart is nearly impossible, and partly because the statute itself gives extra weight to long marriages anyway.
But equal distribution of the marital estate is not the same as equal distribution of what you can see in the driveway. The house gets sold. The retirement accounts get split through a special court order called a QDRO. Sometimes one spouse takes the boat and the lake house and the other takes more of the liquid assets to even it out. The arithmetic at the end of a long marriage divorce can look very different from what either spouse pictured when they first started talking about it at the kitchen table.
Things That Surprise People
People forget that debt is part of the marital estate too. The mortgage, the home equity line, credit cards in one spouse’s name that were used for joint household expenses, the car loan even if the title is in one name. Student loans get complicated depending on when they were taken out and what the money was used for, but a meaningful portion of them often counts as marital.
If your spouse spent forty thousand dollars on somebody they were having an affair with during the year leading up to the divorce, that money does not just disappear. We call it dissipation. The court can charge it back against the spouse who wasted it, and we end up litigating this more than people would guess.
Hidden assets come up in the cases you would expect them to. Self-employed spouses. Cash businesses. The spouse who has been quietly moving money to a relative for the eighteen months before filing. The tools for finding hidden money are not subtle, and the party doing the hiding tends to overestimate how clever they are being. They also tend to underestimate how mad a Florida judge gets when they figure it out.
One more thing while we are on this. What you think the house is worth is probably not what it is worth. Pay for a real appraisal before you start trading equity against retirement accounts. I have seen people give up a 401(k) for a house they later sold ninety thousand dollars under what they thought it was worth at the time of the divorce, and there is no clean way to undo that once the judgment has been entered.
About The Phrase We Settled It Ourselves
Sometimes a couple shows up at our office and they have already worked out how they want to divide things. They want us to just draft it up. Sometimes we can do that. Sometimes what they have agreed to is so far outside what the law would have ordered that it would not survive five minutes of judicial review, and we have to gently tell them so.
Pre-baked deals where one spouse walks away with eighty percent of the marital estate because they were the breadwinner, or because the other spouse felt guilty, or because somebody just wanted the whole thing to be over, are the kind of agreements a Florida judge can refuse to approve. The court has a duty to make sure final judgments are not unconscionable, and in family court they do actually look. It is not a rubber stamp the way some people seem to think.
If you do have a tentative agreement worked out, bring it in and let a family attorney Daytona Beach families have actually relied on look at it before anybody signs. The conversation is short either way, and it is a lot easier to fix a deal before it is filed than after.
If You Are Heading Into This
Pull together what you can find. Tax returns for the last three years. Bank statements, mortgage paperwork, retirement account statements, the most recent pay stub for each of you, information about any business interests, and any prenuptial or postnuptial agreements you signed. It does not all have to be perfectly tabbed in a binder. Just within reach when somebody asks.
Do not move money around in the months before you file. It looks bad. The court has discretion to make assumptions in those situations, and those assumptions tend not to flatter the spouse moving money.
Do not start hiding things either. You are required under Florida law to provide what is called mandatory disclosure within forty-five days, and what gets disclosed during a divorce is genuinely shocking to people who have never been through one. There is nowhere to hide that the rules do not eventually reach.
And unless your situation is genuinely simple, do not try to do this without an attorney. A short marriage with no children, no real estate, no retirement accounts to speak of, and roughly equal incomes can sometimes be handled with a paralegal and a form. Anything more than that tends to benefit, sometimes dramatically, from having somebody in the room who knows the statute and the local judges.
How Rice Law Firm Can Help
Most of what we do at Rice Law is Volusia County family law. Divorce, equitable distribution, alimony, parenting plans, timesharing, modifications, the whole list. Our senior partner, Paul E. Rice, Jr., is board certified in marital and family law by the Florida Bar, which only about six percent of family lawyers in this state are. He has been doing this work in Daytona Beach for over forty years.
We serve clients in Daytona Beach, Ormond Beach, Port Orange, New Smyrna Beach, Palm Coast, DeLand, and the rest of Volusia and Flagler Counties. The first consultation is confidential and we try to make it useful even if you ultimately decide to handle the case yourself or hire somebody else.
If you are looking at a divorce and trying to figure out what your slice of the marital pie is actually going to look like, give us a call. We will walk you through where you realistically stand under Florida law, and you can take it from there.