To Wed or Not to Wed – Who Needs to Sign?

As most of us know, Florida law affords spouses significant protections, particularly when it comes to homestead. Homestead laws are fantastic and somewhat easy to follow when spouses are living in marital bliss, as our beloved Jamie Ebling will be doing from and after August 30, 2017. It is then that Jamie will be married to his sweetheart, Tara. And as long as Jamie and Tara live in marital bliss, as we know they will, following marital homestead requirements will be quite easy for them.  But how about those couples who are legally married, but who may not get along as well as Jamie and Tara do (we have heard rumors that there could be a few unhappy married couples out there). Those situations are much more challenging, and arise generally in two instances.

The first is when one spouse wants to sell their homestead property. Whether or not the other spouse also holds title to the homestead property, under Florida law, the other spouse MUST join in on any conveyance of the homestead property. This is the case regardless of how long a couple may have been separated. We have seen situations where a married couple has lived apart for years, and even some situations where one spouse has thereafter had children with someone else.  Neither of those instances matter when it comes to homestead.  If they are still legally married (there is no such thing as legal separation in Florida), both spouses must join in on the conveyance of homestead property.

A second situation in which homestead laws can be challenging is if a spouse wants to purchase homestead property and get a mortgage to do so.  Florida law also requires that both spouses join in on any mortgage that secures homestead property. And again, Florida law does not distinguish between happy spouses and not so happy spouses. We recently heard of a situation in which a man and woman were sitting at the closing table ready to sign their closing documents to purchase the home of their dreams, at which time the man revealed that he was still legally married to someone else. He had no clue that although he had been separated from his wife for 10 years, and had been with his girlfriend for 8, that his “wife” (who he had not even heard from in 10 years) still needed to execute the mortgage for his purchase of his new home with his longtime girlfriend.  And you can imagine that his girlfriend was not at all happy.

The moral of the story, if it is not clear, find out in advance if your buyer or seller is still legally married.  And if they tell you they are getting a divorce, make sure the divorce is to be finalized before your closing.  Otherwise you could be in for some awkward moments. And as always, if you have any questions, please contact your real estate attorney.



Berlin Patten Ebling, PLLC
Article Authored by Evan Berlin, Esq.

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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