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AGO 70-154 Divorced Owners living in same dwelling

Author johnbsims3
Admin 

#1 - Posted: 17 Nov 2012 10:25 
Oct 28, 1970 AGO 70-154


TAXATION
HOMESTEAD EXEMPTION-DIVORCED OWNERS

To: James W. Bass, Tax Assessor, Fort Pierce.

QUESTIONS:

1. When a husband and wife owning a home as an estate by
the entirety are divorced and the wife continues to live in
the home, is she entitled to claim a $5,000 homestead
exemption or only $2500 for the one half interest she owns?
2. Would your answer be different if the divorce decree
provided that the wife is to have the use of the home and
the husband is to take care of the monthly mortgage
payments, insurance, and taxes and for the support of the
minor children?

AS TO QUESTION 1:

On the facts given, assuming that the divorced wife pays
the taxes and is otherwise eligible to claim homestead tax
exemption, she is entitled to the $5,000 exemption unless the
assessed value of her interest is less than that amount.

Article VII, s. 6 of the State Const., provides exemption
from taxation to "every person who has the legal or equitable
title to real estate and maintains thereon the permanent
residence of the owner, or another legally or naturally
dependent upon the owner." Clarification and statutory
implementations of this constitutional mandate are found in s.
196.031, F.S., which provides for apportionment of the exemption
as follows: said exemption may be apportioned among such of the
owners as shall reside thereon, as their respective interests
shall appear...." (Emphasis supplied.) The amount of the
exemption is to be "the value of the real estate assessable to
the owner" (Art. VII, s. 6(b), State Const.) "up to the assessed
valuation of five thousand dollars...." (Art. VII, s. 6(a),
State Const.).

The interest assessable "may be held by legal or equitable
title, by the entireties... [or] in common...." (Art. VII, s.
6(a) State Const.). The husband and wife, upon divorce, are
vested with the title as tenants in common. Section 689.15,
F.S., provides: "... in cases of estates by entirety, the
tenants, upon divorce, shall become tenants in common." Even
when the divorce decree makes no mention of property held by
entireties as husband and wife, as soon as the decree becomes
effective the parties become tenants in common by operation of
law. Powell v. Metz, 55 So.2d 915 (Fla. 1952). The interests
of tenants in common are separate property interests (AGO 063-
29, Mar. 13, 1963, Biennial Report of the Attorney General,
1963-1964, p. 43), subject to separate taxes (AGO 055-319, Dec.
5, 1955, Biennial Report of the Attorney General, 1955-1956, p.
411). Each is assessable as the whole of an undivided one half
interest. Attorney General Opinion 063-29 mentioned above. If
such interest is assessed up to $5,000, the exemption
corresponds to the assessment and is equivalent to the value of
the interest.

Because the statute allows apportionment of homestead
exemption only among such owners as reside thereon, the wife is
the only recognizable claimant. Her exemption is allowed for
the value of her undivided one half interest in the whole, not
to exceed, however, $5,000.

AS TO QUESTION 2:

If the former husband pays the taxes, the divorced wife has
no apparent right to claim the exemption. As the owner
responsible for taxes, the husband is the only person, if any,
entitled to the exemption.

You state in this instance that the husband supplies
support payments for minor children. These children may be
classified as his dependents. Osceola Fertilizer Co. v. Sauls
1929, 123 So. 780. Determination of dependency is a fact
question which must be decided in view of the circumstances in
each case, and the fact that support payments are made does not,
in and of itself, establish the dependent status of the
children. Vandiver v. Vincent, 139 So.2d 704, 709-710 (2d
D.C.A. Fla. 1962). In Re Kionka's Estate, 113 So.2d 603 (2d
D.C.A. Fla. 1959) contains standards which are most often used
to determine the dependent status. The pertinent passage in the
case reads as follows: "The relationship should be one in which
an established and continuing personal authority, responsibility
and obligation actually rests upon one... for the welfare of
others." Id, at 606. (Emphasis supplied.)

If the husband is deemed the person upon whom the children
are dependent, he may be considered the head of a family for
purposes of homestead exemption. No apportionment appears to be
in question, since the husband is responsible for all tax
liabilities on the property.

The purpose of homestead provisions is expressed in 11 Fla.
Law and Practice Homestead Exemption, s. 4 to be generally as
follows:

Homestead laws are founded upon considerations of public
policy.... The homestead exemption is designed to benefit
not only the head of the household, but also the family,
and to protect the family home....

Our courts have always held that homestead laws should be
construed liberally in the interest of the family and in favor
of the person entitled to them. To grant the husband the
exemption in this instance is simply to allow him to be
benefited by the exemption designed to make his support of his
family less onerous. In Osceola Fertilizer Co. v. Sauls, 123 So.
780 (Fla. 1929), the judge noted:

Though a man be divorced from his wife, and she entrusted
by the decree with the custody of the children and
possession of the home, his status as head of a family is
not lost nor his obligations to his children terminated,
and his right to a homestead remains.

Thus, if there are minor children whom the husband
supports, and if he pays taxes on the homestead property, he is
entitled to an exemption up to the value of his assessed
interest, not to exceed $5,000. (Article VII, s. 6, State
Const. His interest, like his wife's, is that of a tenant in
common. s. 689.15, F.S.) The exemption should be in granted
according to the valuation of his undivided one half interest in
the whole.

Florida State Attorney General Opinions Florida Homestead Services -- Florida Homestead Exemption Act MiniBB / Florida State Attorney General Opinions /
AGO 70-154 Divorced Owners living in same dwelling
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