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Tenants by the Entirety in an Orlando, Florida Area Divorce Case

Tenants by the Entirety is a legal concept rooted in common law, available only to married couples, which allows them to own property as a single, indivisible legal entity. 

In Florida, if a married couple jointly owns real property, there is a legal presumption that they own it as tenants by the entirety. This presumption applies unless they explicitly state otherwise in deed or another document. Florida Statute 61.075- Equitable Distribution states that all real property held by the parties as tenants by the entirety, whether acquired before or during the marriage, is presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof is on the party asserting the claim that the subject property, or some portion thereof, is nonmarital. You can read about this in Florida Statute 61.075(5) (d) (4) f (III) 2. 

What does this mean? This means that if you add your spouse’s name to the deed, they will most likely receive half the net proceeds from the sale of the property if the house is partitioned and sold. Or, you would have to buy out their interest in the house and refinance the house in your name only. That is conditioned on their transferring the property to you by quit-claim deed.

This usually angers the party that puts a substantial amount of money into the property. That is especially true if there is no mortgage on the property and the property is valuable. That spouse has a tough time understanding this when they find out that their spouse is entitled to half of the proceeds of the house. At that point, it is too late for a prenuptial agreement or advice to keep the house in your name only. That is because if you add your spouse’s name to a deed, there is a presumption of a gift. 

That is why it is so important to have planning documents such as a prenuptial agreement, a trust, and a will. They can help protect your assets that you had prior to the marriage, so you are not unnecessarily giving away half of your hard-earned money. 

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. on 407-732-7620 and set an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com 

This article is for informational purposes only and does not form an attorney-client privilege.