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MIAMILAW1127, Family Law Attorney
Category: Family Law
Satisfied Customers: 755
Experience:  Founding Partner at Moises Law, P.A.
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My wife and I have been married (Florida) 12yrs. I owned the

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My wife and I have been married (Florida) for nearly 12yrs. I owned the home (my name) prior to our marriage. During our marriage we refinanced and for personal reasons we decided to place the new mortgage in her name only. I have been the one and only one to make the mortgage payments. We are now about to start the divorce / separation process. If we decide to sell the house, can she evict me at any point prior to the sell of our home. Also, am I still legally entitled to 50% of the profit of the home. Since the home is not in my name
Submitted: 1 year ago.
Category: Family Law
Expert:  MIAMILAW1127 replied 1 year ago.

Hello. Thank you for contacting me. My name is***** am a consultant here and I am looking forward to assisting you with your question. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Please be patient as I will be typing my responses to you from scratch. Also, I can only answer/address the questions you ask specifically based on the information your provide. Please try to provide as much information as possible so I can best assist you.

Expert:  MIAMILAW1127 replied 1 year ago.

Florida is an equitable division, not a community property state.

The first step is to determine whether or not the property is separate property. Property is separate if one spouse owned it before marriage or acquired it during marriage as a gift (not including gifts from the other spouse) or by inheritance.

Unless a couple has a valid written agreement stating otherwise, marital property in Florida includes all assets and debts either spouse acquires during the marriage. It doesn’t matter if the property or debt is titled jointly or is only in one spouse’s name. A spouse can change separate property into marital property (essentially making a gift of separate property to the other spouse) by changing the title into a form of joint ownership. Florida courts will presume that any property a couple owns as “tenants by the entireties” (as a married couple jointly in both names) is marital property, even if one spouse acquired the property separately before marriage.

That being said, whose name is ***** ***** deed? I understand that the new mortgage is under your wife's name, but is your name still on the deed to the house or is your wife's name also the only name on the deed?

Expert:  MIAMILAW1127 replied 1 year ago.

If your name is ***** ***** the deed, she can make this an uphill battle for you.

You would need to establish that the house is not marital property because you owned it prior to the marriage and, although you changed the name on the mortgage/deed, this was not a gift to your wife. You will also need to provide proof that only you paid the mortgage since the time of the refinancing.

Technically, since the house is only under her name, she could potentially begin the eviction process if she wanted to and have you removed from the property.

Whether you are entitled to 100% or 50% of the home would depend on whether the court considers the property separate or marital. If it is considered separate, then you are entitled to 100% of the property. If it is considered marital, then you are entitled to 50% of the property. Although the property is solely under her name, there shouldn't be a situation where you received less than 50% of the equity in the property in the event of a sale.