Can My Spouse's Creditor Attach Property Owned by My Spouse and Me as Tenancy By the Entirety?By Attorney Nemia L. Schulte
QUESTION: My husband received a judgment against him from one of his credit card companies. Can this creditor touch any of the property that my husband and I own together?
ANSWER: Probably not. In Florida, property held by husband and wife as tenants by the entirety ("T/E") is not subject to execution to satisfy debts of either spouse individually. In other words, any property that you and your husband hold as T/E cannot be used to satisfy a debt that belongs only to your husband. Only creditors of joint debts (those debts for which both you and your husband are responsible) may attach property held by you and your husband. However, keep in mind that just because you and your husband have a common interest in the property (bank account, automobile, bonds and stocks, for example), this does not necessarily mean that the property is one held in T/E.
T/E is a type of ownership of property, usually available to only husband and wife. Generally, a T/E property is created when the property is acquired by both the husband and wife at the same time, where one spouse can act for the other and there is a right of survivorship (i.e., the last one to die is entitled to the whole property). Unlike joint property, where one owner can sell his portion of the property without the consent of the other owner, T/E property cannot be divided, severed, sold or transferred without the consent of the other spouse.
In real property, such as your home, if such property is acquired specifically in the name of you and your husband, there is a presumption that a T/E is created. However, this is not necessarily the case for personal property such as your bank account and automobiles, the two favorite types of personal property that creditors generally go after.
The safest way to create a T/E bank account is to label the account "[Your husband's name] and [Your name], T/E." However, if you did not do this or if you have an account with certain banks such as credit unions, which do not allow you to label accounts as T/E, then it may be necessary for you to show an intent to create a T/E with this account. One example is to show that the account is for family/personal use, and either spouse can withdraw and disburse from the account.
Creation of a T/E in an automobile requires that the registration must be in the names of both husband and wife, and not husband or wife.
The significance of a T/E property is that it is immune from levy or attachment by the creditor of only one spouse. This may be a very useful method of protecting jointly-held property from a creditor who may only go after one spouse.
Attorney Nemia L. Schulte practices in Pompano Beach, Fla. Visit her Web site at 123Law.com.