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Homestead, Co-Tenants and Support

Author johnbsims3
Admin Male

#1 | Posted: 23 Oct 2006 14:38 
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.").

Civil and Criminal Issues Florida Homestead Services - Florida Homestead Exemption Act Forum / Civil and Criminal Issues /
Homestead, Co-Tenants and Support
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