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What Happens to Real Property Following a Florida Divorce?


Under Florida law, married couples may jointly own real property as “tenants by the entirety.” This means that neither spouse owns the property individually. Instead, they each have an undivided 100 percent interest in the entire property. That may sound illogical, but the underlying legal concept is simple: The spouses must be in an agreement when it comes to decisions regarding the sale or disposition of the property. It also means that when one spouse dies, the other spouse automatically assumes full solo ownership of the property without having to go through probate.

But what happens if a couple gets divorced? In that scenario, Florida law provides that any property held as tenants by the entirety automatically becomes a “tenancy in common.” This basically means that the divorced spouses become separate co-owners, each with their own 50 percent interest in the property, which they are free to dispose of as they wish, subject to any conditions in the final divorce judgment. Each spouse also loses their automatic right of inheritance.

Ex-Spouse May Have to Pay for Their Share of Post-Divorce House Expenses

One consequence of a tenancy in common is that each spouse bears equal responsibility for maintaining the property. That is to say, each spouse is liable for 50 percent of the property taxes, mortgage payments, insurance premiums, and other expenses associated with the property. If one spouse makes all of these payments and the property is later sold, that spouse has the right to a credit from the non-paying spouse’s share of the sale proceeds.

A recent decision from the Florida Third District Court of Appeal, Martinez-Noda v. Pascual, illustrates how this works. In this case, a husband and wife divorced. Prior to the divorce, the couple co-owned their home as tenants by the entireties. Under the terms of their court-approved divorce settlement, the property became a tenancy in common. The former wife then agreed to “transfer her ownership interest in the property” to her former husband “after he satisfied multiple promissory notes, payable to a third-party acquaintance,” according to court records.

The former husband then filed for bankruptcy in order to avoid repaying the promissory notes. After the bankruptcy proceeding concluded, the former wife asked a Florida judge to order a “partition,” or sale of the house. The judge granted the former wife’s request. But since the former husband said that he alone had paid for the taxes and maintenance on the property, the appeals court said the trial judge needed to determine whether the former husband was entitled to a credit for these payments, which would come out of the former wife’s share of any sale proceeds.

Speak with a Florida Divorce Attorney Today

Dealing with real estate in a divorce is not as simple as dividing a bank account. There are a number of complex legal issues that need to be considered and addressed. An experienced Boca Raton divorce lawyer can provide you with guidance and representation in this area. Contact WiseLieberman, PLLC, at 561-488-7788 today to schedule a consultation with a member of our family law team.




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