Tenants in Common and homestead laws and divorce

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Latest post 12-14-2007 10:17 AM by Drew. 11 replies.
  • 12-07-2007 10:22 PM

    Tenants in Common and homestead laws and divorce

    I was not sure where to post this. Here is the scenario. Husband and wife divorce. They have one child. Husband is not healthy - severe issues. Husband got the marital home in return for a payment of the value of the equity. That has not and probably never will be paid. Wife 1 (ex wife) is on the deed to the homestead property and will not be removed until the equity payment plus interest is paid in full. There is now a second wife in the picture (current wife).

    Scenario is this:

    Husband dies. Wife 1 has what the attorney calls a tenants in common in regards to the property. Wife 2 is not on deed. Does wife 1 get the property? If the child is still underage at time of husband's death, does the child get the property? Does wife 2 have any claim to the property? What happens if the child is an adult? What if husband leaves a will giving the house to wife 2? Can wife 1 fight that in court no matter the age of the child due to the unpaid debt and/or the tenants in common? This is in Florida. Website links would be appreciated to guide me in my quest for info.

    Also please forgive me if this should have been posted elsewhere.
  • 12-08-2007 8:56 PM In reply to

    • Drew
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    re: Tenants in Common and homestead laws and divorce

    Florida may be an odd duck as to homestead!



  • 12-08-2007 9:57 PM In reply to

    re: Tenants in Common and homestead laws and divorce

    Thanks for trying to help me in this. I am confused as to what will happen to the marital home. Will the new wife be able to stay? Or will it go to me or to our child? I agreed to give up my interest in the house for the equity buyout but that has not happened. It is now 1 1/3 years delinquent in that payment. I do not understand what the term tenants in common means and that is what my atty told me when I asked him what would happen if my ex never paid me. Because our names are on the deed, the new wife's name is nowhere on the paperwork.
  • 12-08-2007 11:50 PM In reply to

    • DCGirl
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    Feedback [*=*] re: Tenants in Common and homestead laws and divorce

    Most married couples own property as joint tenants with the right of survivorship, which means that property passes directly to the other outside of probate when one spouse dies. Tenants in common means that each owner owns a share of the property. In this case, I would imagine that you each own 50 percent. When property is owned as tenants in common, each owner can leave his/her share of the property to whomever he/she chooses. Thus, your ex can leave his share to whomever he chooses. You and she would end up as co-owners of the house and would have to find some resolution to that.

    If he's not buying you out per the divorce decree, you can take him back to court and have him held in contempt. It might be easier in the long run to resolve the situation before he dies, because it sounds like it could only get messier afterward.
  • 12-10-2007 2:08 PM In reply to

    re: Tenants in Common and homestead laws and divorce

    "That has not and probably never will be paid."

    Not sure what you mean here.

    "Does wife 1 get the property?"

    No, but if the property settlement agreement has the husband owing her 100% of the equity (and not just 50%), it would seem she's free to force the sale.

    "If the child is still underage at time of husband's death, does the child get the property?"

    You're mentioning "the child" as though you'd mentioned it previously. Again, estate debt (what's owed to ex-wife) is a priority. You'd have to clear up the equity question below.

    "Does wife 2 have any claim to the property?"

    Ownership claim? Perhaps, as to the husband's half-interest. First you'd have to speak to whether the equity you refer to the ex-husband owing to his ex-wife is **100%** of the equity or just her half-interest.

    "What if husband leaves a will giving the house to wife 2?"

    Bequests don't take priority over estate debt but, in any case, we're still not clear on what he owed to #2 (100% of equity or just her 50%?).

    "Can wife 1 fight that in court no matter the age of the child due to the unpaid debt and/or the tenants in common?"

    Sure, she can fight it -- can't say she'd win though.

    You should consult with a local estate-probate attorney.
  • 12-10-2007 2:10 PM In reply to

    re: Tenants in Common and homestead laws and divorce

    "Will the new wife be able to stay?"

    Perhaps. You haven't addressed equity issue yet; see other posts.

    "Or will it go to me or to our child?"

    You haven't really provided any context yet, but I gather you are the ex-wife. Best not to refer to yourself in the third person in posts.

    "I agreed to give up my interest in the house for the equity buyout but that has not happened."

    Again, be specific -- I trust you mean only your 50% interest in the property.

    "I do not understand what the term tenants in common means ...."

    It means each person owns a share in the property; joint tenancy would be an *undivided* interest in the property.

    "... and that is what my atty told me when I asked him what would happen if my ex never paid me."

    And *what* is what your attorney told you??

  • 12-10-2007 4:59 PM In reply to

    • Drew
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    re: Tenants in Common and homestead laws and divorce

    You need to get fired up sooner rather than later.

    if you are on the deed as tenant in common you have a right to go use the place--or send in your least bathed but otherwise well behaved friend to take a shower and enjoy the TV. If you show up with buddy and UHaul his new flame may put a lot of heat under him to get you paid off pronto!

    I would NOT just seek to force a sale as that alos is not a big fire under his rear--if you and your buddy stop by 3-5 times a week for a shower at any time of night or day and/or you rent your interest out to a 21 year old blond bimbo with tatoos that may get his undivided attention to progress...

    Given that FL law may protect the spouse I predict you have lots of problems if you fail to force him to buy you out before he passes to next world!

    I do NOT know how FLs homestead would paly out as to his 50% under TIC if he croaks and his wife survives him--but I think it would be expensive to find out the hard way!



  • 12-10-2007 5:24 PM In reply to

    • Drew
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    re: Tenants in Common and homestead laws and divorce

    I'll take a wild guess:

    Male dies with no resolution.

    EX wife is TIC--she moves in as soon as she gets around to it or leases it to 3 of her unshaven friends.

    EX wife files claim against decedants estate for money due her

    EX wife with minor child--child stands to inherit his Dads share of TIC.

    New wife has life estate due to hubbys TIC but NOT rights to exclusive possession.

    New wife enjoys presence of 3 unshaven dudes!



  • 12-13-2007 11:09 PM In reply to

    re: Tenants in Common and homestead laws and divorce

    "Or will it go to me or to our child?"
    You haven't really provided any context yet, but I gather you are the ex-wife. Best not to refer to yourself in the third person in posts.

    I am sorry - I am the ex-wife and the child is the shared child between myself and the ex husband.

    "I agreed to give up my interest in the house for the equity buyout but that has not happened."
    Again, be specific -- I trust you mean only your 50% interest in the property.

    This was what we signed in our MSA - for an agreed upom amount he would own the hosue and I would no longer have any claim to it.

    "... and that is what my atty told me when I asked him what would happen if my ex never paid me."
    And *what* is what your attorney told you??

    My atty told me that I would be protected by the tenants in common "law" and would either get the money owed to me or the hosue would revert back to me.

  • 12-13-2007 11:15 PM In reply to

    re: Tenants in Common and homestead laws and divorce

    "I'll take a wild guess:
    Male dies with no resolution.
    EX wife is TIC--she moves in as soon as she gets around to it or leases it to 3 of her unshaven friends.
    EX wife files claim against decedants estate for money due her
    EX wife with minor child--child stands to inherit his Dads share of TIC.
    New wife has life estate due to hubbys TIC but NOT rights to exclusive possession.
    New wife enjoys presence of 3 unshaven dudes! "

    Not an attempt at sarcasm here but are you serious? This could happen? All I want to do is protect myself (the exwife with an interest in the property) against a vindictive and nasty ex-husband and even worse new wife. Far more important than protecting my interests in this is protecting our child's interest in this. At least until she is no longer a minor.
  • 12-14-2007 9:31 AM In reply to

    • Drew
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    re: Tenants in Common and homestead laws and divorce

    No, I am not trying to be funny---if you are the EX wife and fail to force a resolution like getting paid in full now for your share as agreed then I predict it will get worse not better if he predeceases you!

    And if you predecease him he stands to win the whole thing by default--or a the very least your son will have a very expensive fight for your estate to recover what Dad owes your estate.

    Seriously, if you are the TIC owner you need to think about pulling up to the front door with a Uhaul and a couple of buddies to move in--sure to get attention of his new wife.

    If you fail to put serious pressue on EX I predict he just coasts along--a free ride on your equity locked into the home! And merely putting the property up for sale still give him an incentive to poke along to get it done.

    If your order failed to stat a time frame to get it done--you mayneed to ask counsel as to what is reasonable time inyour area for court to allow for it to get done...I'd say anything longer than 6 month past the date of the order smells like the person is dragging his feet--but my opinion doesn't count. If his credit with new wife is such that he is most unlikley to get it done then you need to force him to stand aside and get it done.



  • 12-14-2007 10:17 AM In reply to

    • Drew
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    re: Tenants in Common and homestead laws and divorce

    Either your attorney gave you misleading advice or you didn't listen to him or her carefully--or a bit of both.

    I do not see anything "reverting." Just the opposite.

    For now you apparently own 50% via TIC--its yours and absent any written order or agreement to the contrary that 50% is yours to use same as his 50%. If he was awarded the home for exclusive use it 's different--but does your order so state?

    If he fails to buy you out as ordered then there is a problem to work if he croaks then where his 50% goes upon his death and what ability/costs you have to force completion of the award.



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