Pre-nup trumps Florida law for joint property

Article Highlights

  • Parties substitute a contract for law that would otherwise apply
  • The statue provides that all real property held by the parties as tenants by the entirety, whether acquired prior to or during the marriage, is presumed to be a marital asset.
  • How is property split between spouses with a prenup in Florida?

Question:

I heard Florida law provides that if I buy property and place it in joint names with my spouse, my spouse owns half of it and at divorce my spouse retains that half. I have a prenuptial agreement that states everything I buy with my money is mine, no matter how it is titled. What is Florida law in this area?

Answer:

Section 61.075 of Florida Statutes mandates that marital assets and liabilities be equitably distributed at time of divorce. The statute lays out a number of factors to be considered in determining what is equitable. In subsection (6), the statute lists certain assets that are presumed marital, unless the presumption is rebutted by clear and convincing evidence.

The statue provides that all real property held by the parties as tenants by the entirety, whether acquired prior to or during the marriage, is presumed to be a marital asset. The party claiming it is not a marital asset has the burden of proving it is non-marital.

Proving jointly owned property is non-marital is difficult. The evidentiary burden of clear and convincing evidence is far greater than the standard generally applied in civil suits, which is greater weight of the evidence. Rather than tipping the scale of justice ever so slightly for greater weight, clear and convincing requires that the scale be tipped and almost pinned to the ground.

Spouses attempting to claim jointly owned property as non-marital have argued that title was taken jointly to allow for estate planning only, that title is taken jointly for tax purposes and even that title was placed in joint names by accident. But, when the other spouse claims to the contrary, the burden of proof is not met.

It is almost impossible to prove a jointly owned asset is non-marital without a written agreement. The recent case of Turchin v. Turchin confirmed that the written agreement can be prenuptial. Sharon and Leslie Turchin were wed in 1987. Both had premarital assets and they signed a prenuptial agreement to protect them. During the marriage, Mr. Turchin bought a home and placed it in his and his wife’s name. The home was later sold and the proceeds deposited in the Turchins’ joint checking account. Later, Mr. Turchin withdrew most of the funds to pay his personal bills and deposited the money in his separate bank account.

Mr. Turchin died and his wife filed a claim against his estate. She asked for all of the proceeds from the sale of the property and all gains from reinvestment of those proceeds. She argued that because the home had been in joint names, it was presumed a gift to her and she was therefore entitled to the proceeds of sale.

Both trial and appellate courts agreed that it is presumed under Florida law that when property purchased by one spouse is placed in both names, a gift is made. However, the presumption does not apply when a premarital agreement specifically designates how the jointly held property is to be distributed. The Turchins’ premarital agreement specifically addressed this issue and provided that such sale proceeds belonged to Mr. Turchin, with exception of proceeds left in a joint account. Proceeds left in a joint account were owned equally by husband and wife.

The Court noted that a primary purpose of a prenuptial agreement is to limit general discretion of a judge in doing equity between the parties. In effect, the parties substitute a contract for law that would otherwise apply. Because the Turchins’ prenuptial agreement was unambiguous, the statutory presumption was overcome.

Your situation underscores the importance of good counsel in drafting premarital agreements. It also highlights the importance of good legal advice when considering or going through dissolution of marriage. If you have not already consulted with an experienced attorney, you should do so without delay.

William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

© 2009 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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