Equitable Distribution & Prenups — § 61.075 and § 61.079

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 2026  ·  ← All blog posts

Florida is an equitable-distribution state — not a community-property state. That means a divorce court divides marital assets and liabilities in a manner that is “equitable,” starting from a presumption of equal distribution. A prenuptial agreement can change that default entirely. Here is how the two statutes interact.

Florida’s Default: Equitable Distribution Under § 61.075

Without a prenup, Fla. Stat. § 61.075 governs how marital property is divided in a Florida divorce. The statute establishes several key principles:

• Equal distribution is the starting point. § 61.075(1) directs the court to begin with the premise that the distribution should be equal, unless there is justification for unequal distribution based on all relevant factors.
• Marital vs. nonmarital property. § 61.075(6)(a) defines marital assets as those acquired during the marriage, regardless of how title is held. § 61.075(6)(b) defines nonmarital assets as those acquired before marriage, by inheritance, by gift from a third party, or excluded by valid written agreement.
• Ten statutory factors. § 61.075(1)(a)–(j) lists factors the court considers when deviating from equal distribution, including the contribution of each spouse, the economic circumstances of each party, the duration of the marriage, and any intentional dissipation of marital assets.

“[N]onmarital assets and liabilities include assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties.” — Fla. Stat. § 61.075(6)(b)

How a Prenup Overrides the Default — § 61.075(6)(b)

The critical intersection is § 61.075(6)(b): assets and liabilities excluded by a “valid written agreement” are nonmarital. A prenuptial agreement under § 61.079 is the paradigm of such an agreement. This means:

• If the prenup says a spouse’s business is nonmarital property, the court cannot distribute it — even if it appreciated significantly during the marriage.
• If the prenup classifies certain investment accounts as separate, they remain separate regardless of commingling that might otherwise convert them to marital property.
• The prenup can also expand what is marital — for example, agreeing that a pre-owned home becomes marital property upon marriage.

Under § 61.079(4)(a)1., a prenup may address “the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.” This sweeping language permits couples to define their own marital/nonmarital classification scheme.

The Appreciation Problem

One of the most litigated issues in Florida equitable distribution is whether the appreciation of a nonmarital asset during marriage is itself marital property. Under § 61.075(6)(a)1.b., the enhancement in value of nonmarital assets resulting from the efforts of either party or the contribution of marital funds is marital.

A well-drafted prenup can resolve this by expressly providing that appreciation on designated nonmarital assets remains nonmarital, regardless of the source. Without that provision, a business that was $500,000 before marriage and $5 million at divorce may be partially subject to equitable distribution.

Commingling and Transmutation

Even without a prenup, nonmarital property can become marital through commingling — mixing separate and marital funds in the same account, for example. § 61.075(6)(b)3. recognizes that interspousal gifts during marriage are marital unless established by competent evidence to be nonmarital.

A prenup can include anti-commingling provisions: clauses that preserve the nonmarital character of designated assets even if they are deposited in joint accounts or used for family expenses. This is a significant advantage — without such a provision, proving the nonmarital component of a commingled account is expensive and uncertain.

Real Estate and the Marital Home

The family home is often the most valuable and emotionally charged asset. Under § 61.075, a home purchased during marriage is presumed marital. A home owned before marriage by one spouse is nonmarital, but improvements or mortgage payments from marital funds may create a marital interest.

A prenup under § 61.079(4)(a)1.–3. can address this directly: the home remains the nonmarital property of the titled spouse, marital funds used for mortgage or improvements do not create a marital interest, and the untitled spouse waives any claim. Without such a provision, the equitable distribution analysis under § 61.075 can produce years of litigation over the home.

Frequently Asked Questions

Related Reading

• Is a Prenuptial Agreement Enforceable in Florida?
• Florida Prenup Rules for Real Estate & Property
• High-Net-Worth Prenups in Florida
• Florida Prenuptial Agreement Attorney — Practice Area
• Fla. Stat. § 61.079 — Florida’s Prenup Statute, Explained

This article is general legal information about Florida law and is not legal advice. Whether a prenuptial or postnuptial agreement is enforceable depends on the specific facts, the parties' disclosures, and the circumstances of signing. Reading this content does not create an attorney-client relationship with Pazos Law Group. Florida law changes over time; please consult a licensed Florida attorney about your situation.