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Florida Protects Marital Property

On Behalf of | Oct 21, 2014 | Collection

Florida provides excellent protection for collection against marital property by presuming that the property is held as tenancies by the entireties. Tenancies by the entireties means that property is held by husband and wife jointly with rights of survivorship of 100% of the property without the ability to sever the property. Therefore, a creditor cannot partition any part of the property.  This allows a debtor to shield assets held jointly with a spouse. A creditor has the right to challenge the presumption but the burden is on the creditor to demonstrate that the property is not held as tenancies by the entireties to satisfy a debt due by one spouse.

Florida has almost always recognized real property held by husband as wife to be presumed to be held as tenancies by the entireties.  Subsequently, the courts have extended that presumption to bank accounts held jointly by husband and wife. Florida’s garnishment statute places the burden on the debtor and spouse to challenge the garnishment because the property is held as tenancies by the entirety.  

I once had a case where a small private bank was served with a writ of garnishment but refused to hold funds of a debtor because the funds were held jointly as husband and wife and presumed as tenancies by the entirety. However, the garnishee is required to freeze the funds and nothing more.  The debtor must challenge the writ herself.  Naturally, once the garnishee notified the debtor that it was served the writ of garnishment, the debtor withdrew the funds.  I moved to have the bank responsible for the funds because it failed to freeze the funds and was awarded sanctions against the bank.