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Barrister
Barrister, Attorney
Category: Legal
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Experience:  15 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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In Florida, does a creditor get to take all of a garnished

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In Florida, does a creditor get to take all of a garnished account that is held as joint tenants with right of survivorship if the judgment is only against one of the two?
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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No, if an account is owned as JTWROS, then each joint tenant owns half the account and creditors can only garnish half the account. The other owner can file a claim of exemption if the entire account is garnished. Only if the account is held in "tenancy by the entirety" by spouses is it exempt from creditors of one spouse only. But only married couples can hold accounts by "tenancy by the entirely".
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If the non debtor owner can prove that they deposited all the money into the account, they can argue that the debtor owner doesn't own any of the money, but the court may decide that by putting the money into the joint account, the non debtor made a gift of 50% of the money to the debtor owner.
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Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.


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Customer: replied 3 years ago.

 


What are the specific references of Florida law or statues that support that support the JTWROS protection?

This is according to FL caselaw, not a specific statute.
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This is a case on point which states "in a joint tenancy with right of survivorship, each person has only his or her separate share (“per my”) presumed to be equal for purposes of alienation, but for purposes of survivorship, each joint tenant owns the whole, so that upon death, the remainder of the estate passes to the survivor. As described in Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995), where ownership is defined as joint tenants with right of survivorship, a creditor of one of the joint tenants may attach that joint tenant’s portion of the property to recover that joint tenant’s individual debt, whereas when property is held as tenants by the entireties, only the creditors of both spouses, jointly, may attach the TBE property. TBE property is not divisible on behalf of one spouse alone, and, therefore, it cannot be reached to satisfy the obligation of only one spouse.
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Barrister
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Customer: replied 3 years ago.

Is there another case law which supports this position?

I can't find one handy right now and unfortunately in depth legal research is beyond the scope of the services I can provide because legal research can literally take hours to read caselaw to find another case on point.
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But if you have a joint account garnished, you aren't going to have to get in front of a judge and cite caselaw. That only happens on TV. The judge will know that the creditor can only garnish half the money and when they send the form notifying the debtor of the garnishment, there is typically a form included that allows the debtor to file a claim of exemption that is then submitted to the court. There is then a hearing where the judge will rule that the creditor can only garnish half the account.
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Barrister
Customer: replied 3 years ago.

What I was asking is there any other newer Fl. case law which the JTWROS
accounts protecting the member that is not garnished. Thank you.

I haven't seen anything newer but I haven't done a lot of legal research on the topic. It is one of those things that is already established in the law so doesn't get litigated a lot. There isn't much litigation because the judges already know how the law applies in situations like this.
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Barrister