What Happens to Tenancy by the Entirety in a Florida Divorce

Divorce immediately destroys tenancy by the entirety. When a Florida court enters a final judgment dissolving the marriage, every asset the couple held as tenants by the entirety converts to a tenancy in common under Florida Statutes Section 689.15. Each former spouse receives an undivided fifty percent interest, and the creditor protection that shielded those assets throughout the marriage vanishes.

A judgment creditor who could not touch a married couple’s home, bank accounts, or investment portfolios can levy against the debtor ex-spouse’s fifty percent interest the day the divorce becomes final. Couples who built their asset protection around entireties ownership need to plan before the final judgment, while the protection still holds.

How Divorce Converts Entireties Property to Tenancy in Common

Florida Statutes Section 689.15 provides that tenants by the entirety become tenants in common upon dissolution of marriage. Nothing has to be filed, signed, or divided for that to happen. The Florida Supreme Court held in Davis v. Dieujuste, 496 So. 2d 806 (Fla. 1986), that no judicial action is required, because the law converts a tenancy by the entirety to a tenancy in common as soon as the marriage is dissolved. Retitling the house and splitting the accounts come afterward, and they have no bearing on the date the protection ended.

There is no grace period. A creditor with a judgment against only one spouse can reach that spouse’s half interest the day the dissolution is entered.

The one asset that escapes that rule is the property the divorce judgment awards outright to the other spouse. In Sharp v. Hamilton, 520 So. 2d 9 (Fla. 1988), the Florida Supreme Court held that such an award operates as a defeasance of the debtor spouse’s interest, so his judgment creditor’s lien never attaches to that property. A creditor can still attack the award itself as a fraudulent transfer, but it cannot treat the property as though the debtor kept a half interest in it.

The conversion applies to every type of entireties property simultaneously. Real estate, bank accounts, brokerage accounts, vehicles, LLC membership interests, and any other asset held as tenants by the entirety all become tenancies in common at the same moment. A couple cannot selectively preserve entireties protection on some assets while divorcing.

Why Entireties Property Is Presumed Marital

Florida’s equitable distribution statute, Section 61.075, creates a presumption that property held as tenants by the entirety is marital property subject to division.

Section 61.075(6)(a)(2) presumes that all real estate held as tenants by the entireties is a marital asset, regardless of when it was acquired. The same rule applies to jointly titled personal property under Section 61.075(6)(a)(3). Under earlier case law, a spouse who bought the property with premarital money was presumed to have kept an interest in it. The Florida Supreme Court held in Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991), that Section 61.075 preempted that rule and shifted the burden to the paying spouse to prove no gift was intended.

Overcoming that presumption requires clear and convincing evidence under Section 61.075(6)(a)(4). The spouse claiming the property is nonmarital must show that no gift to the other spouse was intended when the property was placed into entireties ownership. A self-serving account of the original intent will not do it. In Hill v. Hill, 675 So. 2d 168 (Fla. 5th DCA 1996), the husband carried the burden only because his wife testified that the deed was meant for survivorship if he died first. The Fifth District said his word alone would have failed.

Entireties titling produces two effects that pull against each other. The same act that shields an asset from a creditor of one spouse also presumes it into the marital pot for equitable distribution. A spouse who moved separate premarital assets into entireties form to defeat a creditor can find those same assets fully divisible when the marriage ends.

When Creditors Can Reach Former Entireties Property

Entireties protection holds until the final judgment, not the filing. A creditor of one spouse gets nothing during the months a dissolution is pending, however far along it is, because the couple is still married and the assets are still held by the entireties. The petition itself puts the pending dissolution on a public docket, where a judgment creditor can watch for the judgment that ends the protection.

Once the final judgment is entered, the debtor ex-spouse’s fifty percent interest in each asset the judgment leaves in both names becomes immediately available to creditors. If the debtor spouse receives specific assets in the equitable distribution, those assets carry no residual entireties protection.

The exposure is not limited to the debtor spouse’s share. If the marital settlement agreement requires one spouse to transfer assets to the other, the transferring spouse’s creditors may challenge those transfers under Florida’s Uniform Fraudulent Transfer Act. A transfer made under a divorce settlement can still be voidable if the transferring spouse was insolvent at the time and the transfer was made to hinder creditors rather than as a genuine arm’s-length exchange.

Transfers of entireties assets made while the marriage is intact are harder for a creditor to attack. Under Chapter 726, entireties property is not an “asset” while a creditor of one spouse cannot reach it. Moving property that such a creditor could never have touched takes nothing away from that creditor. Once the dissolution converts the property, that exclusion is gone, and a later transfer can be attacked as a fraudulent transfer like any other.

Section 61.075(1)(i) lets a judge distribute marital assets unequally where a spouse intentionally dissipated, wasted, or depleted them after the petition was filed or during the two years before it. Under Section 61.11, a divorce court can enjoin a spouse who is hiding or moving property, or order that spouse to stay in the state, where alimony or support is at risk. Restructuring on the eve of a dissolution can therefore survive a creditor challenge and still cost the transferring spouse the same value in the property division.

How Post-Divorce Obligations Are Treated

Equitable distribution awards are treated as ordinary money judgments. If a divorce court orders one spouse to pay the other a lump sum or installment payment as part of the property division, the receiving spouse is simply a judgment creditor. The paying spouse can use Florida’s standard exemptions to protect assets when the receiving spouse tries to collect.

Child support and alimony follow different collection rules. Section 61.12 makes money owed for personal labor garnishable to satisfy an order for alimony, suit money, or child support. The statute applies “whether the head of a family residing in this state or not.”

Head-of-household wage protection yields to a garnishment for support. Section 222.11 itself contains no support exception; on its own it exempts a head of family’s disposable earnings in full at $750 a week or less. A former spouse enforcing a support order therefore reaches wages an ordinary judgment creditor cannot touch.

Joint debts present a separate problem. If both spouses co-signed a loan during the marriage, the creditor can pursue either former spouse after divorce regardless of which spouse the marital settlement agreement assigned that debt to. The marital settlement agreement is a contract between the spouses. It does not bind the creditor, who was not a party to the agreement.

Planning Before Divorce to Preserve Protection

Couples who anticipate divorce and depend on entireties protection face a narrow window to restructure before the dissolution is filed. Once the divorce petition is filed, the cut-off date for classifying marital assets has been established under Section 61.075(7), and any transfers made after that point face heightened scrutiny.

A debtor spouse who receives assets in the equitable distribution can retitle those assets into exempt forms recognized under Florida law. The homestead exemption protects an unlimited value in the primary residence (up to half an acre inside a municipality) regardless of marital status. Florida Statutes Section 222.21 covers retirement accounts. Section 222.14 protects the proceeds of an annuity contract and the cash surrender value of a life insurance policy. None of these depends on marriage; each remains available to a single person after divorce.

Transferring assets into a multi-member LLC before divorce can carry some protection past the dissolution, through the charging order limitation in Florida Statutes Section 605.0503. But converting entireties assets to LLC ownership before divorce can raise both fraudulent transfer and equitable distribution problems. The protection that survives also turns on how many members the company has afterward. Section 605.0503(6) bars a creditor from foreclosing on a member’s interest in an LLC with more than one member.

Where the divorce leaves one former spouse holding the whole company, subsections (4) and (5) apply instead. A creditor who shows that charging order distributions will not satisfy the judgment within a reasonable time can ask the court to order the interest sold, and the buyer takes the entire membership. A buyout looks like the cleanest way to divide a family business, but it turns the multi-member LLC into a single-member LLC and puts foreclosure back on the table.

If the debtor ex-spouse remarries, new assets acquired jointly with the new spouse can be titled as tenants by the entirety, restoring the protection for those assets going forward. This does not help with assets that were already exposed during the period between marriages.

Using the Marital Settlement Agreement Strategically

The marital settlement agreement can be structured with creditor exposure in mind, though its primary purpose must remain the equitable division of assets between the spouses.

Giving the non-debtor spouse most liquid assets while the debtor spouse retains exempt assets (homestead, retirement accounts) can minimize total creditor exposure. This approach is legitimate when it reflects a genuine negotiation between the spouses, but a court may scrutinize an agreement that appears designed primarily to defraud creditors rather than to achieve fair distribution.

Assets that are promptly retitled into exempt forms after distribution receive better protection than assets that sit in non-exempt accounts while the debtor spouse puts off retitling them.

What Happens to Specific Types of Entireties Property

A marital home held as tenants by the entirety becomes a tenancy in common upon dissolution. Where the judgment awards the home to one spouse, a quitclaim deed from the other clears the chain of title, but it is not what transfers the interest. Section 61.075(4) gives the judgment distributing assets the effect of a duly executed instrument of conveyance, once the judgment or a certified copy is recorded in the county where the property sits.

A delay in recording is less dangerous than it looks. A judgment creditor of the spouse who did not get the home acquires no lien on it, because the award works as a defeasance of that spouse’s interest. The risk runs the other way. A creditor of the spouse who did get the home has a judgment that attaches to the whole property the moment the marriage ends, unless the homestead exemption covers it.

Bank and brokerage accounts lose their entireties character the moment the marriage ends. Section 655.79 treats a deposit account in the names of two people who are husband and wife as a tenancy by the entirety unless the paperwork says otherwise. That rule stops applying once the couple is no longer husband and wife. What remains is an ordinary joint account. The survivorship presumption in the same statute still applies, but a creditor of either former spouse can now reach that spouse’s share.

Telling the bank changes nothing about this. An entireties designation on a signature card stops protecting the account on the date the marriage ends, whether or not the institution ever learns of the dissolution or updates its records.

If both spouses owned an LLC as tenants by the entirety, the divorce converts that ownership to a tenancy in common. The LLC operating agreement should address what happens upon dissolution of the members’ marriage, including buyout provisions, management transition, and whether charging order protection applies differently to a co-owned LLC after the marital relationship ends.

Second Marriages and Restored Protection

Remarriage creates an opportunity to re-establish entireties protection, but only for assets acquired or retitled after the new marriage. Assets that were exposed to creditors between marriages do not retroactively gain protection when placed into entireties ownership with a new spouse.

Any transfer of assets into entireties ownership with a new spouse must satisfy the same requirements that apply to creating any tenancy by the entirety. The transfer cannot be a fraudulent transfer under Chapter 726. The rest of the requirements depend on the asset. Real property must carry the six unities: possession, interest, title, time, survivorship, and marriage.

Bank accounts do not work that way. The Florida Supreme Court held in Loumpos v. Bank One, 423 So. 3d 856 (Fla. 2025), that a bank account titled in both spouses’ names can be entireties property under Section 655.79 even when only one of them opened it. Time and title are not among the requirements for a deposit account.

That holding helps a couple defend an account a creditor is already attacking, but it is not a planning method. An account is titled as tenants by the entirety on the day it is opened; asking a bank to add the designation to an existing account later does not work. The same fraudulent transfer standards that govern any other movement of assets apply when a creditor challenges a transfer into an entireties account.

Tenancy by the entirety provides strong creditor protection during marriage, but that protection depends on a legal status that can change. Couples facing serious creditor exposure should layer additional protections that survive regardless of marital status, including homestead, retirement exemptions, and irrevocable trusts.