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Pazos Law Group South Florida Divorce & Family Law

Dividing Retirement Accounts and Pensions in a Florida Divorce

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated August 2026

Quick Answer

Is my 401(k) or pension split in a Florida divorce?

The portion earned during the marriage is. Fla. Stat. § 61.076(1) states that “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution.” The same language appears in § 61.075(6)(a)1.e. What you contributed before the marriage generally stays yours. “Nonvested” matters: a pension you cannot yet collect, and might never vest into, is still divisible.

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For many Florida couples the retirement accounts are worth more than the house. They are also the assets most often mishandled — divided with the wrong paperwork, valued on the wrong date, or split in a way that triggers avoidable taxes. Pazos Law Group handles retirement and pension division in divorces across Miami-Dade, Broward, and Palm Beach counties, in English and Spanish.

What counts as marital retirement property

Florida has a statute devoted to this. Fla. Stat. § 61.076 is titled “Distribution of retirement plans upon dissolution of marriage,” and subsection (1) sweeps in essentially every form of deferred benefit accrued during the marriage:

Two words in the statute do a lot of work. “Nonvested” means a benefit you have not yet earned the right to keep is still a marital asset. “Accrued during the marriage” means the account is not all-or-nothing: an account you opened years before the wedding is divided, with the premarital portion treated as nonmarital under § 61.075(6)(b)1. and the marital growth handled under the equitable distribution rules.

Passive market growth on a premarital balance is a genuinely contested area. Under § 61.075(6)(a)1.b., enhancement and appreciation of a nonmarital asset is marital where it results from either spouse’s efforts during the marriage or from the expenditure of marital funds on it. Contributions made from earnings during the marriage are marital funds. This is exactly the kind of tracing question you want addressed with records rather than assumptions.

You usually need more than the divorce judgment

A Florida final judgment can order that a retirement account be divided, but most plan administrators will not move money on the judgment alone. Employer plans governed by ERISA generally require a separate qualified domestic relations order — a QDRO — a court order that meets the requirements of ERISA § 206(d)(3), 29 U.S.C. § 1056(d)(3), and I.R.C. § 414(p). The QDRO tells the administrator who the alternate payee is, how much they get, and how it is paid.

Different plans use different instruments, and using the wrong one is a common and expensive error:

Getting the order drafted, entered, and accepted by the administrator is a step that outlives the divorce itself. We flag it at the start of a case rather than discovering it years later when the account holder retires.

Military retired pay

Florida addresses uniformed services retirement directly. Under Fla. Stat. § 61.076(2), where the parties were married at least 10 years during which one party performed at least 10 years of creditable service in the federal uniformed services, and the property division includes a division of retired or retainer pay, the final judgment must include:

That 10-years-married overlapping 10-years-of-service test mirrors the federal condition for direct payment by the Defense Finance and Accounting Service under the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. Note also § 61.076(3): an order dividing uniformed services retired pay cannot require payment more often than monthly, and cannot force the payor to vary its normal pay cycles.

Note the statute divides disposable retired pay, which is not the same as gross retired pay. If military retirement is part of your case, see our Florida military divorce page.

Valuation dates and why they move the number

Under § 61.075(7), the cut-off date for classifying assets as marital is the earliest of a valid separation agreement, a date that agreement sets, or the date the petition is filed. The date for valuing them is whatever date the judge finds just and equitable, and the statute expressly permits different assets to be valued as of different dates. In a volatile market, months of delay between filing and trial can change a 401(k) balance materially. Who bears that market movement is negotiable, and it should be addressed explicitly in your marital settlement agreement rather than left ambiguous.

Not all accounts are worth the same on paper

An equal split on a balance sheet can be an unequal split in reality. $200,000 in a traditional 401(k) is pre-tax money that will be taxed on withdrawal; $200,000 in a Roth IRA or a taxable brokerage account with a high basis is not the same asset. Florida’s equitable distribution factors under § 61.075(1) include “[t]he economic circumstances of the parties” and a catch-all for “[a]ny other factors necessary to do equity and justice between the parties,” which leaves room to argue about after-tax value. We are family lawyers, not tax advisors, and we work alongside your CPA on these questions rather than guessing at them.

Retirement assets and alimony

Under § 61.075(9), the court may distribute marital assets without regard to alimony, and only after the equitable distribution is determined does it consider whether alimony should be awarded. That sequencing matters in long-marriage cases where retirement accounts are the main asset: what you receive in the property division shapes the alimony analysis that follows, not the other way around. Florida’s alimony statute, § 61.08, was substantially rewritten in 2023.

Frequently Asked Questions

Is my spouse entitled to half of my 401(k) in Florida?

Not automatically half, and not the whole account. Under Fla. Stat. § 61.076(1) only the benefits accrued during the marriage are marital and subject to equitable distribution. Fla. Stat. § 61.075(1) directs the court to begin with the premise that distribution of marital assets should be equal unless there is justification for an unequal distribution based on the listed factors.

What is a QDRO and do I need one?

A qualified domestic relations order is a separate court order that directs a retirement plan administrator to pay a portion of a participant’s benefits to a former spouse. It is defined by ERISA § 206(d)(3), 29 U.S.C. § 1056(d)(3), and I.R.C. § 414(p). Most private employer plans, including 401(k)s and pensions, require one before they will divide an account. IRAs do not use QDROs; they are divided by transfer incident to divorce under I.R.C. § 408(d)(6).

Can a pension that has not vested yet be divided?

Yes. Fla. Stat. § 61.076(1) expressly makes both vested and nonvested benefits accrued during the marriage marital assets subject to equitable distribution. The same language appears in Fla. Stat. § 61.075(6)(a)1.e.

How is military retired pay divided in a Florida divorce?

Under Fla. Stat. § 61.076(2), if the parties were married at least 10 years during which one party performed at least 10 years of creditable uniformed service and the division includes retired or retainer pay, the judgment must identify the member, certify that the Servicemembers Civil Relief Act was observed where applicable, and state the amount as a dollar figure or a percentage of disposable retired pay. Fla. Stat. § 61.076(3) bars payment more frequently than monthly.

What happens to retirement contributions made after we separated?

Under Fla. Stat. § 61.075(7), the cut-off for classifying assets as marital is the earliest of a valid separation agreement, a date set in that agreement, or the date the dissolution petition is filed. Contributions after that cut-off generally fall outside the marital estate, but valuation dates are set separately by the judge as just and equitable, so the treatment of growth in the interim should be addressed expressly.

Do I lose my share if I remarry?

An equitable distribution award is not alimony. Under Fla. Stat. § 61.075(2), a cash payment awarded for equitable distribution vests when the judgment is entered and does not terminate on remarriage or death of either party unless the parties agreed otherwise; it is treated as a debt. Alimony under Fla. Stat. § 61.08 is governed by different rules.

Talk to a Florida Divorce Attorney About Your Retirement Accounts

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The information on this page is for general informational purposes only and does not constitute legal advice. Outcomes depend on the specific facts and circumstances of each case, and no particular result is guaranteed. Reading or sharing this content, or using this website, does not create an attorney-client relationship with Pazos Law Group. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation.