You’re Not Married Until The Paperwork Is Finished

When I first heard of this case, I thought it was an interesting but isolated case– the sort of thing that happens but is not common.  I may have been wrong.  In one of those serendipitous coincidences, I met a lady at a speaking engagement who told me about a situation involving several of her friends.  Several couples at a club that she belonged to had recently been “married” by a notary who also belonged to the club.  They had ceremonies, but failed to get licenses.  Apparently, the notary informed them that a license was not necessary.  WRONG!

Florida outlawed common law marriages in 1967. Since then no amount of playing house together can make you husband and wife in Florida, as discovered by Kimberly Hall and Roberto Maal.  Ms. Hall and Dr. Maal had the full ceremony, represented to the world that they were husband and wife, purchased a home as “husband and wife,” and even had two children.  However, one small detail was never attended to; i.e., they failed to obtain a marriage license, solemnize the marriage before an acceptable official, and return the license to the clerk of the court for recording.  The completed step one (i.e., they got a license), but failed to complete steps two and three.  See, Fla. Stat. sections 741.01 to 741.212 Years later when trouble arose, Ms. Hall was denied a “divorce” because she and Dr. Maal were never married.

A failure to obtain a license and be properly married can have serious consequences in a number of situations besides divorces.  In a divorce, it can cause a loss of rights to marital property and alimony.  Moreover, in an estate, it could cause a loss of rights to a life estate in a homestead, an elective share, and family allowance.  If there is no marriage, then there is no surviving spouse.  If  the purchasers of real property are not married, then they do not acquire the property as tenants-by-the-entireties and have no creditor protection and no survivor rights.  The forgotten marriage license is the opposite of the forgotten spouse problem.  Either one is serious though.

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Will Richard Fuld’s “Scam” Work?

While taking my son to school recently, I heard some DJs prattling on about how Richard Fuld had sold his Jupiter Island mansion to his wife for $10.00.  (Actually, it was $100.)  The DJs dubbed this the “oldest dodge in the book” and opined that he would never get away with it.  Their comments got a little more intelligent when they commented that it might fail because the couple could not prove Florida residency.

Actually, Florida law might allow him to “get away with it.”  First, as one law professor pointed out, real property owned jointly by a married couple in Florida is a tenancy-by-the-entireties.  Entireties property is protected from someone that only one of the spouses owes money too.  Thus, no one who gets a judgment against Richard Fuld could seize the mansion unless they also had a valid claim against Mrs. Fuld.  The property was exempt from creditors of Richard Fuld even before he transferred his interest in it to Mrs. Fuld.  It was not necessary for Fuld to transfer his interest in the home to his wife,  If he had left it in joint names, it would have remained safe from creditors of his.  Perhaps Fuld failed to seek legal advice before transferring the home to his wife?

Second, if  Mrs. Fuld can establish that the Jupiter Island mansion is her primary residence.  She can claim it as her homestead and it will be exempt from creditors of hers.  A person’s homestead under Florida law is completely exempt from the claims of creditors.  Of course, if Mrs. Fuld cannot prove Florida residency, then she cannot claim the constitutional creditor protection for the property and it is subject to claims of any of her creditors.  Thus, the Fulds may have actually decreased the protection the home enjoyed against creditors because now it may be subject to the claims of anyone who Mrs. Fuld owes money.