If I Live in Florida, Does My Spouse Have a Right to My House?

Spouses who are going through a divorce in Florida often ask, "does my spouse have a right to my house?" The answer is a big, it depends. We will first address the scenario below where the home is in both your name and your spouse's name.

Florida Statutes Section 61.075(6)(a)2, commonly abbreviated F.S. 61.075(6)(a)2 identifies all real property held as tenants by the entireties* carries a presumption of a marital asset, regardless of when or how it was acquired.

Case law+ has found that the above statute preempts earlier law in as much that a spouse who paid for property held as tenants by the entireties from a decidedly NON-marital source would be entitled to a special equity unless the other spouse could prove that a gift was intended. The Supreme Court of Flroida changed that in passing F.S. 61.075, where the legislature undid the “no gift” presumption. Now, the party seeking an unequal distribution must prove that a gift was not intended.

Overcoming the presumption of a marital gift between the two of you, is not an easy undertaking and will require specific evidence to refute. This is something best discussed with a member of the Florida Bar. We are happy to discuss it with you at Peterson Family Law at 239-206-3664. Call to schedule a no-cost consultation.

*This means that it was acquired as married persons, in both names with full ownership rights. As joint tenants by the entirities both you and your spouse have 100% ownership of the home. Essentially like the biblical unity of the marriage, where you and your spouse are to become one, so goes ownership. You become one and each of you owns the entire home.

+ See Robertson v. Robertson, 593 So.2d 491 (Fla. 1992)

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