Porter v. Porter

472 So. 2d 630 (Ala. 1985)

 

RULE:

A divorce does not necessarily sever a joint tenancy. Although divorcing parties are usually desirous of settling all their property rights, there is no requirement that the divorce modify the previous ownership. A divorce decree which is silent with respect to property held jointly with a right of survivorship does not automatically destroy the existing survivorship provisions.

FACTS:

The former wife and the decedent had bought and owned their home as joint tenants with right of survivorship. Their divorce decree provided that the former wife had exclusive occupancy of the home and that the decedent was responsible for the mortgage payments, taxes, and other costs related to the property. The widow filed a complaint for the sale of the property for division. The issue was whether the divorce decree destroyed the unity of possession and converted the joint tenancy with right of survivorship into a tenancy in common by granting exclusive occupancy of the house to the former wife. The trial court held that it did, awarding to the widow one-half ownership in the home the decedent had shared with the former wife. The case was appealed.

ISSUE:

Does a divorce decree convert a joint tenancy with right of survivorship into a tenancy in common?

ANSWER:

No

CONCLUSION:

The court found that the unity of possession was not destroyed because the divorce court retained jurisdiction over the matter indicating that the exclusive occupancy given to the former wife was temporary. Reversing the judgment and remanding the cause, the court held that the divorce decree did not destroy the joint tenancy with right of survivorship and that the property vested in the former wife upon the decedent's death

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