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David L
David L, Lawyer
Category: Legal
Satisfied Customers: 3255
Experience:  Attorney licensed in multiple jurisdictions.
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I am in the middle of a divorce. When my husband and I

Customer Question

I am in the middle of a divorce. When my husband and I purchased our home in 2008, it was with significant help from his mother. Her name is ***** ***** mortgage, and the search through the property appraisers office shows her and my husband's names on the deed. I was required to be present at the closing and to sign closing documents. I know Florida has some laws regarding properties held by married couples and legal protection for spouses in situations like this, but I am wondering what the specific statute that protects my rights may be, and how I can find a copy of the paperwork I was required to sign?
Submitted: 6 years ago.
Category: Real Estate Law
Expert:  David L replied 6 years ago.
David L :

Hello. You probably signed the mortgage because in Florida, lenders require the spouse to sign mortgages even if they are not a party to the loan. This requirement has to do with a spouse's homestead rights and gives the lender an easier path to foreclose if the loan goes into default.

David L :

As far as your rights to the home, during a divorce you would probably argue that all marital funds used toward the home during the marriage would entitle you to a 50/50 split.

David L :

That would potentially include all equity gained since 2008.

Customer:

Well as you're aware, the market has most homes, including mine, upside down, luckily mine's only about $5k under water. I just didn't know if there were some statutes or case law references about properties held by the entirety/estate held by entirety to help support my retaining the house in lieu of him quitclaiming his portion to me. He doesn't want to do a quitclaim because he said, in mediation last week 'if she can't make the mortgage payment I'll just move back in and keep the house'. Essentially leaving me with the option of giving up my house, or letting him control me through his retaining of the property.

David L :

There is no case law that would give either of you a priority based on the tenancy by the entirety ownership. The family law court will make the final determination if the two of you can't agree who should end up with the house.

Customer:

ok. thank you.

David L :

You're welcome. Please feel free to press the "Accept" button so I receive credit for this question and it will be closed out. If you require anything further, feel free to follow up.

Customer:

Well now that I've had research time - I've found that my almost ex cannot quitclaim his portion of the property as a tenant by the entirety without my joinder - as set forth in Sec. 708.8 F.S. - or explained on another legal review site -










Common Law Asset Protection: Tenants by Entireties

Common law refers to law established through the precedent of case decisions by judges. Common law decisions in Florida, and in many other states, have afforded creditor protection to property which is jointly owned by a husband and wife as tenants by entireties. Any two individuals may own property, real or personal, as joint tenants with rights of survivorship. Either joint tenant may sell or alienate his interest in the joint property while both joint tenants are alive. After the death of one joint tenant, ownership is vested by operation of law in the surviving joint tenant(s). Because a joint tenant can voluntarily dispose of his property while he is alive, a creditor is able to execute on a joint tenant’s interest to satisfy the debts of such individual joint tenant.

Married persons may own property as joint tenants with rights of survivorship. In fact, most married couples purchase and own their assets in this form. Bank accounts and financial instruments owned by married persons are often designated as being owned jointly with rights of survivorship. A creditor of either spouse may seize the interest the debtor spouse holds in joint tenant property. Courts will presume that the debtor spouse owns a 50% interest in joint tenant property unless the facts demonstrate a different allocation of ownership. If the creditor seizes the debtor spouse’s interest, the creditor would become a tenant in common with the non-debtor spouse.

Unlike joint ownership with rights of survivorship, tenants by entireties ownership affords asset protection benefits. Tenants by entirety (“TE”) is a special form of joint tenancy ownership which is available only to married persons under the common law. This common law concept relates back to 18th century English concepts that a husband and wife were joined as a unit which unit is separate and distinct from either spouse acting individually. The tenancy by entirety is, conceptually, a separate entity of ownership which can act only with the consent of both spouses. While tenants by entireties has been abolished in England, it survives under the common law of many jurisdictions in the United States, including Florida, where it is well established in a long line of Florida case law decisions.

Both tenants must join in any transfer or alienation of TE property, and one spouse cannot transfer his interest in TE property without the joinder of the other spouse.



Customer:







Actually, as I've had time to do more research there may be case law, but was able to discover that FS 708.8 prohibits him from quitclaiming it without my signing a joinder as tenants by the entirety since the mortgage is not in his name, and the house is in his name with his mother.


Common Law Asset Protection: Tenants by Entireties

Common law refers to law established through the precedent of case decisions by judges. Common law decisions in Florida, and in many other states, have afforded creditor protection to property which is jointly owned by a husband and wife as tenants by entireties. Any two individuals may own property, real or personal, as joint tenants with rights of survivorship. Either joint tenant may sell or alienate his interest in the joint property while both joint tenants are alive. After the death of one joint tenant, ownership is vested by operation of law in the surviving joint tenant(s). Because a joint tenant can voluntarily dispose of his property while he is alive, a creditor is able to execute on a joint tenant’s interest to satisfy the debts of such individual joint tenant.


Married persons may own property as joint tenants with rights of survivorship. In fact, most married couples purchase and own their assets in this form. Bank accounts and financial instruments owned by married persons are often designated as being owned jointly with rights of survivorship. A creditor of either spouse may seize the interest the debtor spouse holds in joint tenant property. Courts will presume that the debtor spouse owns a 50% interest in joint tenant property unless the facts demonstrate a different allocation of ownership. If the creditor seizes the debtor spouse’s interest, the creditor would become a tenant in common with the non-debtor spouse.


Unlike joint ownership with rights of survivorship, tenants by entireties ownership affords asset protection benefits. Tenants by entirety (“TE”) is a special form of joint tenancy ownership which is available only to married persons under the common law. This common law concept relates back to 18th century English concepts that a husband and wife were joined as a unit which unit is separate and distinct from either spouse acting individually. The tenancy by entirety is, conceptually, a separate entity of ownership which can act only with the consent of both spouses. While tenants by entireties has been abolished in England, it survives under the common law of many jurisdictions in the United States, including Florida, where it is well established in a long line of Florida case law decisions.


Both tenants must join in any transfer or alienation of TE property, and one spouse cannot transfer his interest in TE property without the joinder of the other spouse.




Customer:







Actually, as I've had time to do more research there may be case law, but was able to discover that FS 708.8 prohibits him from quitclaiming it without my signing a joinder as tenants by the entirety since the mortgage is not in his name, and the house is in his name with his mother.


Common Law Asset Protection: Tenants by Entireties

Common law refers to law established through the precedent of case decisions by judges. Common law decisions in Florida, and in many other states, have afforded creditor protection to property which is jointly owned by a husband and wife as tenants by entireties. Any two individuals may own property, real or personal, as joint tenants with rights of survivorship. Either joint tenant may sell or alienate his interest in the joint property while both joint tenants are alive. After the death of one joint tenant, ownership is vested by operation of law in the surviving joint tenant(s). Because a joint tenant can voluntarily dispose of his property while he is alive, a creditor is able to execute on a joint tenant’s interest to satisfy the debts of such individual joint tenant.


Married persons may own property as joint tenants with rights of survivorship. In fact, most married couples purchase and own their assets in this form. Bank accounts and financial instruments owned by married persons are often designated as being owned jointly with rights of survivorship. A creditor of either spouse may seize the interest the debtor spouse holds in joint tenant property. Courts will presume that the debtor spouse owns a 50% interest in joint tenant property unless the facts demonstrate a different allocation of ownership. If the creditor seizes the debtor spouse’s interest, the creditor would become a tenant in common with the non-debtor spouse.


Unlike joint ownership with rights of survivorship, tenants by entireties ownership affords asset protection benefits. Tenants by entirety (“TE”) is a special form of joint tenancy ownership which is available only to married persons under the common law. This common law concept relates back to 18th century English concepts that a husband and wife were joined as a unit which unit is separate and distinct from either spouse acting individually. The tenancy by entirety is, conceptually, a separate entity of ownership which can act only with the consent of both spouses. While tenants by entireties has been abolished in England, it survives under the common law of many jurisdictions in the United States, including Florida, where it is well established in a long line of Florida case law decisions.


Both tenants must join in any transfer or alienation of TE property, and one spouse cannot transfer his interest in TE property without the joinder of the other spouse.