It is not Florida law that your husband's name be on the homeowner's insurance. It is Florida Homestead law that your husband, by virtue of your marriage, has an interest in the property. Unless you had a prenuptial agreement, once you married, your husband began an ownership interest in the home. You cannot sell the house without his signature, and I am surprised you were able to refinance without his signature on the closing papers. It does not matter that he is not on the deed to the home.
One of the main misconceptions regarding property in Florida is that if you are married and you keep the title to the home in "your name only" it means it is not marital property. That is not true. It may be considered pre-marital in the event of divorce, although highly unlikely, but it is not in the eyes of the "homestead law".
If you die married in Florida, own a home you declare to be your homestead principal residence, you cannot devise your home in a Will away from your Spouse and your children. If you were to die without a Will and no children your husband would get the house. If you were to die without a Will and children, who are not the children of your surviving spouse, your Spouse is entitled to a Life Estate and the remainder goes to your children.
So if you sell the house, your Husband would have to sign at closing, and he would be entitled to one-half the equity from the time he began living in the home.
Keep the letter it will help, but it would not be considered a pre-nup or a post-nup. Now if you think he really means what he says regarding the house, then draw up a post-nuptial agreement. It is an agreement between a husband and wife after the marriage. It is executed just like a pre-nup.
You have a strong argument in the event of divorce that the home is premarital, but it is not a sure thing. Your husband can claim equity in the home from the time he lived there. The fact that he didn't pay the mortgage,helps, but the money you used to pay the mortgage is considered marital funds, unless you kept it completely separate from him, and can prove that you never intended for that money to be marital. Its very hard to do.
A post-nuptial agreement will be valid in the event of divorce is probably your best option if you think he will agree to it.
Once your husband does sign the polst-nup he is waiving his homestead rights to the house. It would be very important at that point to have a Will drawn up devising the home. Remember in Florida spouses can also elect a 30% spousal election against a Will as well. Another words if you had a Will and you left your spouse less than 30% of your Estate, they could elect the "spousal share" and force the 30%. Make sure you put that he cannot elect the spousal share in the post-nup as well.
It's interesting what you say about proof of seperate finances. I, in fact, have kept my finances completely seperate to his as he came into the marriage with huge debt and alimony(for life) and child support and terrible credit. We have no shared credit cards or bank accounts at all. The mortgage has been paid out of my bank account.
Do you work with these Agreements? is so please let me know what the fee would be to have post-nuptial agreement made up for me and at the same time a Will that would give sole ownership of my property to my 3 biological children if anything should happen to me.
Unfortunately we are not allowed to represent clients or have private contact with customers. You do need a Will if you have children from a previous relationship, and a post-nuptial. I recommend you contact a lawyer in your area to help you with these documents.
Again, if something should happen to you right now the way things are, your Husband would be able to live in the house for the rest of his life, and have full ownership its called a 'life estate'. He would be responsible for the mortgage, taxes, insurance, but he could also rent the house and keep the income. When he died then your children would get the house split evenly. He could not sell the house, without agreement from the children, or if they are minors their guardian, nor could he devise the house by Will. You cannot change this in your Will. The only way to change this would be to get him to sign a post nuptial agreement waiving his right to the home, or a divorce. In the divorce it would be up to the Court to decide if he has any equity in the home. The fact that you have kept everything separate is very good in that regard and increases your chances that it will be held separate. In the event of your death however, this cannot be changed unless he waives, or you divorce.
Hi Mr VanDLaw,
My single brother has suggested I put the house in his name before I sell it (I love him and completely trust him), what would be the consequences of me doing that regarding the mortgage (would I have to pay off the mortgage first? or can I put it in his name and keep paying the mortgage till I sell it?), taxes and whatever else I should know about. By the way we are British, I am a legal resident (married to a US citizen) and although my brother has no US residency at all he does own properties in the US with no mortgages.
There could be a potential property tax impact and recording fee impact. I am not an expert on the tax implications, but we do have a Tax Section, and a Real Estate Section, if you would like to post a question for an expert there.
I do know that you should consider this transfer very carefully!
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