Posted by Nydia Streets of Streets Law in Florida Divorce
If two spouses own property in Florida along with a third party such a parent of either spouse, how is that property divided in a Florida divorce? The answer to this questions starts with having the appropriate parties named in the divorce case. A third party who claims ownership to any marital property may file a motion to intervene in the case. This was an issue in Bailey v. Bailey, 4D19-3459 (Fla. 4th DCA January 27, 2021).
The husband filed for divorce, seeking distribution of a corporate entity alleged to be owned by the parties. The corporate entity was named as a third party respondent in the case. The wife counter-claimed for a partition of real property owned by the parties. One of these properties was alleged to be partially owned by the husband’s mother. The wife later voluntarily dismissed her partition claims, and the husband’s mother filed a motion to intervene claiming she was a creditor of the corporate entity and that she had an ownership interest (via a constructive trust) in real property that would be divided in the divorce. The trial court denied the husband’s mother’s motion without elaboration.
Citing the two-step process that must be considered when deciding a motion to intervene, the appellate court began its analysis as follows: “First, the trial court must determine that the interest asserted is appropriate to support intervention. (Citation omitted.) Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention. In deciding this question the court should consider a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstance. Second, the court must determine the parameters of the intervention[.] . . . Thus, intervention should be limited to the extent necessary to protect the interests of all parties.”
As to the mother’s argument she had an interest in the corporate entity, the appellate court disagreed holding “We disagree with the mother-in-law that her former ownership interest in the Company is enough to permit intervention. Her interest in the Company primarily rests in her status as a founder and former owner. However, she acknowledges that she sold her interest in the Company. As such, her previous interest in the Company is not direct and immediate.” With regard to her argument about the real property, the appellate court held “We agree with the mother-in-law that she alleged an interest in the Wellington Property at issue in the dissolution action. We also agree that intervention is appropriate. While the Wife correctly argues the court will only adjudicate the Wife's and Husband's respective 1/3 interest in the Wellington Property, that adjudication will likely impact the right of survivorship in the property held as joint tenants.”
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