How a Judgment Against You Affects Your Spouse in Florida
A money judgment against one spouse in Florida does not create any legal obligation for the other spouse. Florida is a separate liability state. Each spouse is responsible only for debts they individually incur. A creditor holding a judgment against one spouse cannot collect from the other spouse’s separate property or garnish the other spouse’s wages. That spouse owes the creditor nothing.
A judgment against one spouse can still affect the non-debtor spouse in three ways. The creditor can take post-judgment discovery from that spouse, bring fraudulent transfer claims over assets the debtor moved, and reach tenants by the entireties property if the marriage ends or both spouses become jointly liable.
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Does Florida Hold Spouses Responsible for Each Other’s Debts?
Florida does not hold one spouse responsible for the other spouse’s debts, including medical bills. In Connor v. Southwest Florida Regional Medical Center, the Florida Supreme Court abolished the common law doctrine of necessaries, which in many other states still makes a spouse liable for the other’s necessary expenses. One spouse’s credit card debt, personal guarantee, or tort liability does not become the other spouse’s problem.
Florida stands apart from community property states like California, Texas, and Arizona. There, a creditor holding a judgment against one spouse can often reach community property. In Texas a tort either spouse commits during the marriage reaches all community property. In California the whole community estate pays a judgment against either spouse, whichever of them earned the property. In Nevada a debt one spouse takes on during the marriage reaches the community property, as the Ninth Circuit states Nevada’s rule. Florida does not follow community property rules.
The separate liability rule also means that a creditor must obtain a judgment against both spouses jointly before reaching property the couple holds as tenants by the entireties. Other forms of joint ownership carry no such protection. A judgment against one spouse reaches that spouse’s share of a joint tenancy with right of survivorship. The same is true for a tenancy in common.
Separate judgments against each spouse (even for related claims, even held by the same creditor) do not qualify as a joint judgment. A creditor who sues a husband for breach of contract and then separately sues the wife for unjust enrichment based on the same money still holds two individual judgments, not one joint judgment. Only a single judgment naming both spouses overcomes the entireties shield.
How Tenants by the Entireties Protects Marital Assets
Married couples in Florida can hold both real and personal property as tenants by the entireties. This form of joint ownership treats the spouses as a single legal unit. Neither spouse owns a separable individual interest, so a creditor holding a judgment against only one of them cannot reach an asset held as tenants by the entireties.
The protection covers real estate, bank accounts, brokerage accounts, vehicles, and other personal property, but what establishes entireties ownership differs by asset type. A vehicle title must name both spouses with “and” rather than “or.”
Florida Statute 655.79 treats a joint bank account held by a husband and wife as a tenancy by the entireties unless the account documents say otherwise in writing. In Loumpos v. Bank One, the Florida Supreme Court held that the statute applies even if one spouse opened the account first. A creditor defeats the statute’s presumption only by producing a writing in which the couple expressly disclaimed entireties ownership. The court in Storey Mountain, LLC v. George held that the disclaimer can sit in the bank’s own deposit agreement rather than on the signature card.
Several large banks disclaim entireties ownership in their standard deposit agreements, so a couple who never read the paperwork may have no presumption at all. Where no disclaimer exists, the creditor must overcome the presumption by a preponderance of the evidence. The statute reaches only deposit accounts at banks and credit unions, so a brokerage account is governed by the account application instead.
Tenants by the entireties protection has five important exceptions:
- Joint judgment. A creditor holding a joint judgment against both spouses can seize entireties property.
- IRS federal tax liens. The IRS can pursue a debtor spouse’s interest in entireties property to satisfy federal tax liens, regardless of the non-debtor spouse’s ownership interest. The Supreme Court held in United States v. Craft that a debtor spouse’s interest is property the federal tax lien can attach to, even though state law treats that spouse as owning nothing separately.
- Divorce. Divorce severs the entireties ownership and converts the ownership to tenants in common, immediately exposing each spouse’s share to their individual creditors.
- Death. The death of one spouse ends the entireties ownership and vests full title in the surviving spouse. If the non-debtor spouse dies first, the debtor spouse becomes sole owner and individual creditors can reach the formerly protected property.
- Fraudulently funded property. A creditor can attack entireties property the debtor spouse funded with a fraudulent transfer. The creditor carries the burden of proving the property was acquired with fraudulently transferred funds.
Can a Creditor Depose the Non-Debtor Spouse?
A judgment creditor can depose the non-debtor spouse under oath even though that spouse owes nothing on the judgment. Rule 1.560(a) lets the creditor demand information from any person who may know where the debtor’s assets are.
The questions can cover joint assets and the debtor spouse’s finances. They can extend to any recent transfers between the spouses. The creditor can also require the non-debtor spouse to produce bank statements, tax returns, and records of property received from the debtor.
Rule 1.560(d) sets a limit on how far the creditor can go into the non-debtor spouse’s own finances. The court orders the spouse-related portion of the fact information sheet only if the creditor shows a proper predicate for discovery into that spouse’s separate income and assets. Discovery about jointly held assets and about transfers from the debtor needs no predicate.
This discovery has two purposes. The creditor is looking for non-exempt assets in the debtor spouse’s name. The creditor is also investigating whether the debtor spouse transferred assets to the non-debtor spouse to avoid collection. Discovery of recent transfers often leads to fraudulent transfer claims.
How Fraudulent Transfers Between Spouses Create Liability
A debtor who moves separate assets to the non-debtor spouse after a judgment is entered can have those transfers reversed under Florida’s Uniform Fraudulent Transfer Act. The creditor pursues the transfer inside the case that produced the judgment. Section 56.29 lets the creditor file a supplemental complaint against the non-debtor spouse as the transferee, without starting a new lawsuit.
The non-debtor spouse has to defend the fraudulent transfer action. If the court finds the transfer was made to hinder, delay, or defraud creditors, the court can void the transfer and order the property returned.
Florida’s fraudulent transfer statute lets the creditor either recover the asset itself or take a money judgment against the spouse who received it. The judgment is capped at the value of the asset when it was transferred, or at the creditor’s claim, whichever is lower. The non-debtor spouse does not become liable for the rest of the judgment against the debtor spouse.
Even transfers that appear innocent can be challenged. A debtor who retitles a bank account into joint ownership with a spouse, or who deposits individual funds into a joint account, leaves a paper trail a creditor can follow. A transfer that runs to a spouse, follows the lawsuit, and returns nothing in exchange hits three of the statutory signs of fraud. The pattern most likely to trigger a fraudulent transfer claim is transferring assets to a spouse shortly before or after a lawsuit.
Transfers of homestead property from one spouse to the other are treated differently. Florida courts have held that a debtor can transfer a homestead to the non-debtor spouse without committing a fraudulent transfer, because the homestead was already exempt from creditors when the transfer was made.
Can a Judgment Lien Attach to Jointly Owned Property?
A recorded judgment lien does not attach to real property held as tenants by the entireties when the judgment is against only one spouse. The lien also does not attach to property titled solely in the non-debtor spouse’s name. The non-debtor spouse can freely sell or mortgage separately owned real estate without any obligation to satisfy the debtor spouse’s judgment.
The risk comes when entireties ownership ends. If the spouses divorce, the formerly protected property converts to tenants in common and the judgment lien attaches to the debtor spouse’s share. A dissolution judgment that awards the property to the non-debtor spouse can defeat the lien. The lien is extinguished if the debtor spouse dies first, because the survivor takes the whole property free of it. If the non-debtor spouse dies first, the debtor spouse owns the property alone, and it is exposed to that spouse’s creditors, including the one holding the recorded judgment.
For a married couple that owns non-homestead real estate as tenants by the entireties, the protection depends on the marriage continuing and both spouses remaining alive. A recorded lien lasts 10 years, and rerecording it before it lapses extends it for another 10. No judgment is a lien on Florida property more than 20 years after it was entered. Within that window the lien stays on the record, and any divorce, death, or voluntary transfer that ends the entireties ownership leaves the debtor spouse’s interest exposed to the judgment creditor.
What Can the Non-Debtor Spouse Do?
The non-debtor spouse’s primary concern is keeping existing entireties ownership intact and avoiding any action that could look like a fraudulent transfer. New deposits into joint accounts should be traceable to joint sources rather than to the debtor spouse’s individual income or assets. Retitling property from one spouse’s name into joint ownership after a judgment is a transfer a creditor is likely to challenge.
Assets already held as tenants by the entireties before the judgment are generally safe as long as the marriage and joint ownership remain intact. Neither spouse can sever a tenancy by the entireties acting alone, so the risk comes from what the couple does together. Conveying entireties property into a trust that does not preserve joint ownership and survivorship severs the entireties ownership. Opening a new account with a different ownership designation leaves that account outside the protection.
A creditor can obtain a joint judgment if the non-debtor spouse co-signs a new loan, guarantees a debt, or becomes jointly liable on the same obligation. A joint judgment reaches everything the couple owns together, which is why creditors ask both spouses to sign contracts and guarantees.
Florida’s judgment collection laws give creditors discovery, garnishment, and recorded liens to find and reach a debtor’s assets. Those tools stop at property the couple holds as tenants by the entireties, as long as the marriage lasts and only one spouse owes the debt.
