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Exemptions against Garnishment Tenants by the Entireties

Exemptions against Garnishment Tenants by the Entireties

You have successfully brought your case in Court, and you are the holder of a judgment. If you are like most people, you want to turn your judgment into money to recoup your personal or company’s losses.

Contrary to some beliefs, you may garnish a defendant in Florida. There are two types of post-judgment garnishments: 1.) wage style and 2.) bank style. This white paper’s focus is on the bank style garnishment of personal bank accounts where the debtor asserts a defense involving the tenancy by the entireties.

You have a judgment against John Doe. John Doe is married to Jane Doe. John and Jane have a bank account together, and you garnish it. The question has to do with how that account is owned, as personal property, can be owned in more than one way. These accounts can be difficult to garnish in Florida because of a Florida Supreme Court case called Beal Bank v. Almand and Associates, 780 So 2d 45 (2001). In short, Beal Bank states a creditor of one spouse cannot garnish marital funds if they are actually owned as a tenancy by the entireties. Only married people are allowed to own property together in this type of ownership. In order to create this type of account, a couple must meet certain requirements, which are called “unities.” Florida recognizes six unities.

In an account held by the entireties, the couple must show: 1.) Possession (they equally possess ownership of the account), 2.) Interest (the interest for each spouse must be identical), 3.) Title (their interest must have originated from the same instrument, which is typically the signature cards or contract governing the account), 4.) Time (meaning they were both present when the account was opened), 5.) Survivorship (if one spouse dies, their interest goes to the surviving spouse), and 6.) Marriage (the couple must have been married at the time the account became titled in their names).

Oftentimes, when married people own bank accounts, there is a presumption that the account is held by the entireties. However, this presumption can be overcome with proper factual evidence. Courts are replete with decisions where creditors garnished a married individual only to find out that the account was never created with these six essential unities. If even one of these unities is missing, the court may find that the account is titled as a joint tenancy or tenancy in common. Just because your debtor is married doesn’t mean your remedies are over.

If you have concerns about exploring your options in post-judgment garnishments of personal bank accounts, give the professionals at Hiday & Ricke, P.A. a call today.

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