A divorce decree, silent with respect to property held jointly with right of survivorship, does not automatically destroy a joint tenancy. However, the parties themselves, or the court with the parties before it, may terminate the estate, the termination resulting in the creation of a tenancy in common without a right of survivorship.
The first wife and the husband acquired real property as joint tenants with the right of survivorship. Upon divorce, they entered into a separation agreement which stated that the property “shall remain in joint ownership until it can be sold in a commercially reasonable manner.” The husband then married his second wife. The property was conveyed by the husband to his second wife. Thereafter the husband died without the property being sold. During the estate proceedings, both the first and second wife moved for summary judgment. The second wife argued that the joint tenancy was destroyed when the divorce was obtained, thus, and a tenancy in common was created. Assuming it did not, the deceased had validly conveyed the property in her favor. The first wife argued otherwise, that the joint tenancy subsisted despite the divorce and the conveyance was defective. The trial court ruled for the first wife and denied the second wife’s motion. On appeal, the second wife asked whether the trial court erred in determining that: (1) the divorce judgment did not destroy the joint tenancy in the property, and (2) that the deceased had not validly conveyed to her his interest in the property.
Did a divorce terminate a joint tenancy between a married couple, despite a requirement in the divorce decree that the property would be held "jointly" until sale?
As to the second wife's first claim, the divorce judgment evidenced an intent to destroy the joint tenancy in the property because the judgment provided for the property to be sold and for the proceeds of that sale to be equally divided between the first wife and the deceased. The language of the divorce judgment was similar to the language of the divorce judgments in the Watford, Malone, and Kirven decisions. The first wife argued unsuccessfully that the divorce judgment did not destroy the joint tenancy because the judgment stated that the property would remain in joint ownership. The term jointly was consistent with either a joint tenancy or a tenancy in common. The first wife's reliance on the word remain was also misplaced. Discussion of whether the deceased validly conveyed the property to his second wife was pretermitted.