How to Protect Your Assets in a Divorce in Florida

1. What Does Florida Protect in a Divorce?

Florida divides property by equitable distribution. The divorce court first gives each spouse back his or her nonmarital assets, then divides the marital assets beginning from the premise that the split should be equal, and departs from equal only for reasons the statute lists. Florida is not a community property state for divorce.

Florida’s divorce statute lists three kinds of nonmarital property that matter most for planning.

• Property owned before the marriage, and anything acquired in exchange for it.
• Gifts and inheritances from someone other than your spouse, and anything acquired in exchange for them. Our page on whether an inheritance is marital property covers the inheritance rules in detail.
• Property the spouses excluded from the marital estate by a valid written agreement, which is what a prenup or postnup does.

Everything acquired during the marriage is presumed marital until shown otherwise, and the growth in value of a nonmarital asset is marital when it comes from either spouse’s work during the marriage or from marital money spent on it. A premarital brokerage account worth $400,000 at the wedding stays nonmarital, but the $150,000 of paychecks deposited into it over the years are marital.

2. How Does a Prenup Protect Your Assets?

A prenuptial agreement is the most precise way to protect assets in a Florida divorce, because the spouses decide the classification themselves instead of leaving it to tracing years later. Florida’s premarital agreement statute lets a couple contract about property of either spouse whenever and wherever acquired, its disposition on separation, divorce or death, and the setting or waiver of alimony. The agreement must be in writing and signed by both, and it takes effect on the marriage.

A prenup cannot reduce a child’s right to support. A court also may require support despite the agreement where waiving alimony would leave a spouse eligible for public assistance.

Florida enforces a prenup unless the spouse resisting it proves one of three things. The first is that the agreement was not signed voluntarily. The second is fraud, duress, coercion or overreaching. The third is an agreement that was unconscionable when signed, where that spouse received no fair disclosure, did not waive disclosure in writing and had no adequate knowledge of the other’s finances. Full financial disclosure, a separate lawyer for each spouse and signing well before the wedding answer all three. The Florida prenuptial agreement page covers the process, and what a prenup covers lists what it can and cannot do.

3. Can a Postnup Protect Assets if You Are Already Married?

A postnuptial agreement does the same work after the wedding. Florida’s divorce statute treats property excluded by a valid written agreement as nonmarital whether the agreement was signed before or during the marriage. A couple can use a postnup to confirm that an inheritance, a premarital house or a business stays separate, or to waive each other’s rights at death.

The disclosure rule is stricter. Florida requires each spouse to make a fair disclosure of his or her estate before a waiver signed after the marriage will bind, and courts look closely at fairness in an agreement between people who already owe each other the duties of a marriage. Each spouse should have a separate lawyer. Our page on the Florida postnuptial agreement explains how one is signed, and prenup versus postnup compares the two.

A postnup is planning for a working marriage. A postnup proposed after one spouse has decided to leave is a negotiation in a divorce, and the person proposing it needs a family law attorney.

4. How Do You Keep Separate Property Separate?

Separate property loses its protection through handling far more often than through any rule. Florida courts presume that a spouse who deposits separate money into a joint account, where it is mixed with other funds, made a gift of half of it to the other spouse, and rebutting that presumption takes clear and convincing evidence. Real and personal property titled to both spouses as tenants by the entirety (the joint ownership form reserved for married couples in Florida) is presumed marital whenever it was acquired.

1. Keep premarital and inherited money in accounts in your name alone, and put no paychecks or joint money into them.
2. Pay the costs of a separate asset from separate money. Paying down the mortgage on a premarital house from marital funds gives the other spouse a share of the equity under a formula in the statute.
3. Think before signing a deed to both spouses. Since 2024 a gift of real property between spouses must be made in a writing that meets the formalities of a deed, so the deed is the step that counts.
4. Keep records that trace each separate asset from its source to today, because the spouse claiming property as nonmarital carries the burden.

5. Can a Trust Protect Assets From Divorce?

A revocable living trust protects nothing from a spouse in a divorce. The person who created the trust can revoke it and take everything back, so a divorce court treats its contents as that person’s property and sorts them into marital and nonmarital exactly as if the trust did not exist. Florida law says the same about creditors, making revocable trust property reachable as if the grantor owned it directly.

A trust created by someone else is the strongest protection available. An inheritance a parent leaves in a trust for a child never becomes the child’s property to mix into a joint account. Where the trustee decides whether to pay, a creditor of the beneficiary, including a spouse, cannot force a payment or attach the beneficiary’s interest. A former spouse with an alimony order can ask a court to reach distributions from a spendthrift trust (a trust with a clause barring creditors from seizing the beneficiary’s interest), but only as a last resort. The Protected Trust Plan, flat fee from $4,700, keeps each child’s share in trust for that child’s life for exactly this reason.

An irrevocable trust that a married person creates with marital property is a permanent gift. The property belongs to the trust and its beneficiaries from then on, which is a large price for protection that a prenup or postnup can usually provide more precisely. Moving marital property into one when the marriage is failing also invites a finding of intentional dissipation, discussed below. Our page on what happens to a trust in a divorce covers revocable, irrevocable and joint trusts in detail, and the Florida asset protection page covers protection from creditors, which follows different rules.

6. How Do You Protect a Business in a Divorce?

A business owner’s spouse usually has a claim to part of the business, even when only one spouse runs it. A business started during the marriage is marital. A business owned before the marriage stays nonmarital, but the increase in its value from the owner’s work during the marriage, or from marital money put into it, is marital.

Florida’s statute sets the valuation rule. The court values the marital interest in a closely held business at fair market value, meaning the price a willing buyer and a willing seller would agree on, and goodwill that exists apart from the owner’s personal presence and reputation (enterprise goodwill) is a marital asset the court must value. A $2 million company with a loyal customer list and a trained staff carries enterprise goodwill that a divorcing spouse can claim a share of.

Three documents protect a business ahead of time.

1. A prenup or postnup that classifies the business, its growth and the owner’s salary, and sets how the business will be valued if the marriage ends. The page on the prenup for business owners covers the clauses.
2. An operating or shareholder agreement that lets the company or the other owners buy back an interest awarded to a former spouse, so a co-owner never ends up in business with an ex. Our operating agreement page covers the drafting.
3. A buy-sell agreement that fixes the price and the terms of that buyback. The Florida buy-sell agreement page covers the triggers.

7. What Happens if You Move or Hide Assets Before a Divorce?

Florida’s divorce statute lets the court consider the intentional dissipation, waste, depletion or destruction of marital assets after the petition is filed or within two years before it. Courts ask whether a spouse used marital money for a purpose unrelated to the marriage while the marriage was breaking down, and a judge who makes a specific finding of that misconduct can count the missing money as if the spouse who moved it still had it.

A transfer to a relative, or a deed of marital property into a new trust, can be undone this way. The money stays with the relative or the trust, and the spouse who moved it receives that much less of what remains. Ordinary living expenses during a pending divorce are treated differently, and simple mismanagement is not dissipation.

Hiding assets carries a second cost. Each spouse files sworn financial affidavits in a Florida divorce, and an asset left off them is a false statement under oath. Florida courts have also treated the timing of a transfer as evidence that lets a judge reject a spouse’s explanation for it, which is the story told at the bottom of this page.

The planning that holds up is done in the open. A prenup, a postnup or a parent’s trust is signed while the marriage is working, with both spouses’ knowledge and, for the agreements, each spouse’s own lawyer.

8. What Should You Do if a Divorce Is Already Underway?

Hire a family law attorney. We do not handle divorce cases, and the questions that matter once a petition is filed (what can be spent and what must be disclosed) belong to the lawyer handling the divorce.

Four estate documents need attention the same week, subject to any order in the case.

1. Your durable power of attorney. Florida ends a spouse’s authority as your agent when the divorce action is filed, unless the document says otherwise, so name a new agent.
2. Your revocable trust and will. Florida cancels gifts to a former spouse automatically, but only when the judgment is entered, so a death during the divorce leaves them in force.
3. Your beneficiary forms, especially an employer 401(k) or pension, where federal law can override Florida’s rule.
4. Your health care surrogate designation, which Florida revokes only on the judgment.

The divorce lawyer should confirm that no order restricts a change before you sign anything. The page on what happens to a trust in a divorce walks through each document.

What Does It Cost to Protect Assets Before a Divorce?

A prenuptial or postnuptial agreement is a flat fee quoted at consult, because the work moves with the assets and with whether each spouse already has a lawyer. For a parent protecting a child’s inheritance, the Protected Trust Plan is a flat fee from $4,700 ($6,000 for a couple). An asset protection review is quoted at consult. We do not represent either spouse in a divorce, and we do not quote divorce work. Recording and other government costs are additional and passed through at cost. Advertised fees are honored for 90 days from the posted date.

Frequently Asked Questions

Common Situations

The engaged surgeon with a practice. A surgeon owns 40% of a medical practice and is marrying next year. A prenup classifies the practice interest and its growth as separate, sets a valuation method, and the practice’s shareholder agreement already lets the other doctors buy back any shares a court awards to a former spouse.

The wife who put the condo in her living trust. A woman deeded her premarital condo into her revocable trust, believing the trust would keep it out of any divorce. The trust changes nothing in a divorce. The condo stays hers because she owned it before the marriage, and the risk is the mortgage the couple has been paying from the joint account, which a postnup can address.

The parents leaving a large inheritance. A couple plans to leave each of their three children about $800,000 and worries about the children’s marriages. The parents leave each share in a lifetime trust with an independent co-trustee, so the money never passes through a joint account.

Sources of Law

• Fla. Stat. §61.075(1) (nonmarital assets set apart; marital assets divided from a premise of equality); (1)(i) (intentional dissipation after filing or within two years before); (6)(a)1.b. (enhancement from marital effort or funds); (6)(a)1.c. (mortgage paydown from marital funds); (6)(a)1.d. (interspousal gift of real property requires a writing complying with §689.01); (6)(a)1.f. (closely held business at fair market value; enterprise goodwill is marital); (6)(a)2. to 4. (entireties property presumed marital; clear and convincing standard for the gift presumption); (6)(b)1., 2., 4. (premarital assets, gifts and inheritances, assets excluded by valid written agreement); (7) (cut-off date); (8) (presumption that assets acquired during the marriage are marital). Retrieved October 2, 2026.
• Fla. Stat. §61.079(3), (4)(a), (4)(b), (7)(a), (7)(b) (premarital agreement formalities, permitted content, child support not affected, grounds for nonenforcement, support to avoid public assistance eligibility).
• Fla. Stat. §732.702(1), (2) (waiver of spousal rights at death before or after marriage; fair disclosure required after marriage).
• Fla. Stat. §736.0505 (annotated)(1)(a) (revocable trust property reachable by the settlor’s creditors); §736.0504 (annotated)(2) (discretionary distributions cannot be compelled or attached); §736.0503 (annotated)(2)(a), (3) (spendthrift clause yields to a spouse or former spouse with an alimony order, as a last resort). Fla. Stat. §709.2109(2)(b) (agent spouse’s authority ends on filing); §736.1105 (annotated) and §732.507(2) (revocable trust and will provisions for a former spouse void on dissolution); §732.703 (beneficiary designations); §765.104(2) (health care surrogate), as set out on what happens to a trust in a divorce.
• Dissipation requires a specific finding of misconduct, and mismanagement does not qualify: Stock v. Stock, 693 So. 2d 1080 (Fla. 2d DCA 1997); Dravis, below, discussing Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008), and Tradler v. Tradler, 100 So. 3d 735 (Fla. 2d DCA 2012).
• Case retold below: Dravis v. Dravis, 170 So. 3d 849 (Fla. 2d DCA 2015). Opinion read in full; retrieved October 2, 2026.

The Birthday Money That Became Evidence

In one case I have reviewed, the cash a mother gave her daughter for birthdays and Christmas ended up as the evidence against the daughter.

A Polk County couple married in January 1990. Over the years the wife’s mother gave her cash gifts at birthdays and at Christmas, $78,000 in all, and the wife, who handled the family’s finances, kept it in a passbook savings account opened in 2009 in both spouses’ names, alongside money everyone agreed was marital. In September 2010 she retitled the account in her name alone, with her husband listed only as the payable-on-death beneficiary, and did not tell him. In June 2011, a few months before they separated, she removed him from the account entirely. Within twenty days after the separation she moved $78,000 to an account in her mother’s name, bought a $12,500 certificate of deposit in her own name that she left off her financial affidavits, and withdrew $6,000. The account had held $121,196 at the separation, and by trial it held $1,887. The wife testified that the account was meant for her retirement and that the joint title had been a mistake (an explanation that may well have been sincere when the account was opened). The Second District held in 2015 that the gifts had become marital because they were mixed with marital money, and it pointed to the secret retitling, the removal and the transfer to her mother as the facts that undercut her explanation.

Reading the case through, I have a few take-home points.

The first is that the gifts were hers to keep. Gifts from a mother are nonmarital in Florida, and an account in the daughter’s name holding nothing but those gifts would have stayed hers.

The second is that the moves made once the marriage was failing decided the credibility question. The appeals court treated each step, from the quiet retitling to the transfer to her mother, as evidence that let the trial judge reject her explanation that the money was always meant to be separate. Avoid retitling or moving money without your spouse’s knowledge, because the timing becomes evidence of why you did it.

The third is the disclosure. The certificate of deposit missing from her financial affidavits is the kind of fact that costs a spouse more than the money involved. One limit is worth stating plainly. The appeals court sent the case back because the trial judge had not made the specific finding of misconduct the law requires before counting the spent money, so the opinion does not say what she ultimately owed.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a decision of a Florida court rather than a matter handled by this firm. We do not handle divorce cases. Past results do not guarantee a similar outcome.

Updated on October 2, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. Each spouse should have independent counsel, and anyone in a pending divorce should consult a family law attorney. Do not send confidential information until we have agreed to represent you.