So You Just Found Out Your Name Is Not On The Deed

The parties in this case have been living together since 1994. They were married in 2004. Immediately before they started living together in 1993, the Husband (then boyfriend) bought a home. The Wife (then girlfriend) moved into the home in 1994. They have lived in the house ever since. They were married 10 years after they started living together in 2004. They had joint checking accounts since 1994, and the Wife has contributed to the upkeep and maintenance of the martial home. But her name was NEVER added to the deed to the house. So for all practical purposes when it comes to divorce, the Wife has no ownership interest in the home. She may have an "equity interest" but she does not legally own the marital home.

So in a divorce, how would that effect the Wife? Well, if the Husband goes to court asking that the Wife be made to move out, the court has no other option then to ask the Wife to leave the home. The case on point with this position is the Herrera case which held that "because the husband acquired title to the home prior to the marriage and kept it titled in his name, the non-marital property was not subject to equitable distribution, and, as such, wife should not have been granted exclusive use and possession of husband's premarital home. Herrera v. Herrera, 895 So. 2d 1171 (Fla. Dist. Ct. App. 2005). The Court further opined, "the trial court granted the former wife exclusive use and possession of the former husband's home under the section of the order dealing with equitable distribution. However, Section 61.075(5)(b), Florida Statutes (2002), defines "Nonmarital assets," in part, as "[a]ssets acquired ... prior to the marriage...." A non-marital asset may not be conveyed to a non-owner spouse as equitable distribution absent an agreement. Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA), review denied, 846 So.2d 1148 (Fla.2003); Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000). Thus, because the former husband acquired title to the home prior to the marriage and kept it titled in his name, the non-marital property was not subject to equitable distribution." Id at 1174.

The best idea is that after you and your spouse are married, and you've agreed to pool resources, please have the house put in both names. Alternatively, if your spouse refused to put your name on the "pre-marital" home, it might be a wise idea to limit the pooling of resources. Don't be surprise if during a divorce, you feel "duped." Putting all those years into a relationship, combining resources and financial contributions, only to find out from the court that you have to leave the home you've lived in for 16 years because your name is not on the title. Buyer Beware.

Categories: Prenuptial Agreements