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Homestead and Support

Author johnbsims3
Admin Male

#1 | Posted: 22 Oct 2006 06:24 | Edited by: johnbsims3 
Homestead and Support

A lien can attach to an interest of a co-tenant if it does not qualify for homestead. The lienholder can force a sale of that interest; however, a partition of the property can not be forced on the homestead interest if the owner of the homestead interest has the exclusive right to possession, unless the property can be divided in a manner that would preserve the homestead interest.
In the case of a marital dissolution, the applicable state court can award ownership of the marital home or exclusive possession or require its sale. The courts exercise this power, notwithstanding the homestead exemption. In some cases, ownership is awarded based on special equities and proceeds may be allocated as alimony. Sometimes, the court awards one spouse a lien against the other's interest in the homestead in order to secure payment of a property settlement or other amount. No other persons or valid creditors can obtain a lien against the homestead or force the sale of the homestead to satisfy a debt. This is true whether the debt arises out of a contract, a tort, or any other wrongdoing. The exemption is superior to a claim for alimony or child support, [FN69] although dicta in old cases suggest otherwise. There is one recent, questionable case where a former husband was directed to sell his home to satisfy an alimony obligation because the court would not allow him to use the homestead exemption as an instrument to defraud his former wife. [FN71] The constitutional exemption is so broad that the Florida government cannot use the Florida RICO Act to seize the owner's homestead if the homestead is used for illegal activities. An equitable lien or Florida RICO action could result, however, if that person used illegally obtained funds to purchase the homestead. In these instances, forfeiture under the federal RICO Act is a separate matter.
[FN69]. See Graham v. Azar, 204 So. 2d 193 (Fla. 1967) ($1000 of personal property exempt from claim for child support); see also Isaacson v. Isaacson, 504 So. 2d 1309 (Fla. 1st Dist. Ct. App. 1987) (refusing to grant a former spouse an equitable lien for alimony arrearage in excess of $15,000 because of absence of fraud or other egregious conduct on the part of the former husband who resided in former marital home with new wife).
[FN71]. See Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th Dist. Ct. App. 1991). But see Butterworth v. Caggiano, 605 So. 2d 56, 60 n.5 (Fla. 1992) (noting that "[v]irtually all of the relevant [fraud exception] cases involve situations that fell within one of the three stated exceptions to the homestead provision.").
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Author johnbsims3
Admin Male

#2 | Posted: 22 Oct 2006 06:24 | Edited by: johnbsims3 
Davis v. Amerifirst Bank, 578 So.2d 318
Fla.App. 3 Dist.,1991
Even if real property pledged to secure mortgage was at one time homestead, it lost such status when maker of note and mortgage, and owner of property, became divorced.



Cain v. Cain, 549 So.2d 1161
Fla.App. 4 Dist.,1989
Award of possession of marital residence to wife does not extinguish husband's homestead. West's F.S.A. Const. Art. 10, 4.



Cain v. Cain, 549 So.2d 1161
Fla.App. 4 Dist.,1989
Husband retained homestead interest in home, notwithstanding dissolution judgment awarding possession of residence to wife, where husband's children still resided at residence, he occasionally received mail there, and he had neither alienated his interest or shown any intent to establish homestead elsewhere; thus, husband's undivided one-half interest in residence could not be levied upon in violation of his homestead interest. West's F.S.A. Const. Art. 10, 4.



In re Estate of Melisi, 440 So.2d 584
Fla.App. 4 Dist.,1983
Owner may, in case of divorce, be precluded from residing on homestead with family of which he is head due to award of exclusive possession to other spouse; homestead character of property is in that case not abandoned.



In re Estate of Melisi, 440 So.2d 584
Fla.App. 4 Dist.,1983
If noncustodial parent, subsequent to divorce, was head of family at time of his death, his undivided one half of property was homestead and he was prohibited from disposing of it by will during child's minority. West's F.S.A. Const. Art. 10, 4(c).



Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559
Fla.App. 1 Dist.,1981
Where defendant's wife and minor child still occupied residence during period of time that defendant retained his ownership interest in the property after he moved out and resided in an apartment, defendant had not "abandoned" the property, and thus plaintiff's lien did not attach to property when it allegedly ceased to become homestead property upon abandonment. West's F.S.A.Const. Art. 10, 4(a).



Barnett Bank of Cocoa, N.A. v. Osborne, 349 So.2d 223
Fla.App. 4 Dist.,1977
Where husband and wife owned property as tenants in common and were divorced by decree which gave wife custody of the children and possession of the home until youngest child reached 18, property was subject to homestead exemption claimed by former husband.



Moore v. Hunter, 13 So.2d 909
Fla.,1943
In suit to quiet title to realty, conveyed to complainant by her divorced husband, pursuant to property settlement agreement, by deed executed and delivered after divorce was granted, bill was sufficient to withstand motion to dismiss on ground that deed attempted to convey homestead without joinder of grantor's wife.
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Homestead and Support
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