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Married, Separate Residences, Two Homestead Exemptions, Living Apart, Legally Separated

Author johnbsims3
Admin Male

#1 | Posted: 24 Nov 2006 07:14 | Edited by: johnbsims3 
"Questions: If my wife and I are legally separated and living in separate Florida homes, are we each entitled to the Homestead exemption?

My wife and I live in another state and have a condo in Palm Beach, Florida. We are ages 62 and 59 respectively - my wife currently spends the winter in Florida and we also go down there at other times of the year. Given that we are out of state residents the taxes on our condo are increasing rapidly - this year alone they increased 22%. We plan to move to Florida at some point though I plan to work for a number of years yet.

My question is this: Would it be practical/legal for my "wife only" to establish residency in Florida - the purpose being to obtain a homestead exemption on the property. I know there are many variables involved but if so doing we could limit the tax increases to the 3% cap, this could result in a very significant savings over time. The short question is - Can this be done or do you know of other couples that have done the same? "

###

First I would like to say that I don't know what the term "legal separation" could possibly mean other than married couples not living together, under the pretense that no attempt to perpetrate fraud is being performed.

The law on this issue allows for dual or separate homestead exemptions if married and living seperately and not dependent on each other. I would be safe and contact the local county property appraisers for both counties to be sure, as they all interpret the law differently and have the presumption of correctness under law which means a fight in court if they rule against you.

The key is establishing "separate family units" which means self-supporting families and not dependent on each other. In other words, the same scenario as being divorced without actually having a divorce decree is the only safe way. One spouse can live in Florida or in a separate family unit, but would be required to make Florida his or her domicile and actually become a resident.

Contact us for more information at http://www.floridahomesteadservices.com

Also see this thread on the issue:

http://www.homesteadpropertyexemption.info/index.p hp?action=vthread&forum=25&topic=27&page=0#msg33


I have attached some authority on the matter for your learning pleasure.
AGO_75146_Spouses_.docAttached file: AGO 75-146 Separate Residences & Spouses
 
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#2 | Posted: 24 Nov 2006 07:15 
Attorney General Opinion 2005-60, Homestead Exemption & Separate Residences
AGO_200560_Homestea.docAttached file: Attorney General Opinion 2005-60 homestead & Separate Residences
 
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#3 | Posted: 24 Nov 2006 07:18 | Edited by: johnbsims3 
Judd vs. Schooley, 158 So.2d 514 (Fla.)

Married woman, who was living congenially with her husband who was domiciled in another jurisdiction, was entitled, in absence of any finding of bad faith, to establish residence in her separate property and thereby receive tax benefits under Homestead Exemption Amendment. F.S.A.Const. art. 10, 7; F.S.A. 192.14, 192.19, 708.08-708.10.


158 So.2d 514
Supreme Court of Florida.
Kimi T. JUDD, Appellant,
v.
Harry SCHOOLEY, as Tax Assessor of Lee County, Florida, Appellee,
and
George S. Hunter, Herman J. Hastings, Mack H. Jones, Julian Hudson and J. Fred Huber, as and constituting the Board of County Commissioners of Lee County, Florida, a Political Subdivision, and Ray E. Green, as Comptroller of the State of Florida.
No. 32548.
Dec. 13, 1963.
Taxpayer's proceeding for declaratory decree that she was entitled to homestead tax exemption on her separate residence. The Circuit Court of Lee County, Archie M. Odom, J., granted decree for taxpayer and the county and state officials appealed to the Supreme Court, 142 So.2d 727, which transferred the cause. The District Court of Appeal, 149 So.2d 587, reversed and the taxpayer appealed. The Supreme Court, Thornal, J., held that in absence of finding as to bad faith, taxpayer, a married woman who was living congenially with her husband who was domiciled in another jurisdiction, could establish residence in her separate property and thereby receive tax benefits under Homestead Exemption Amendment.
Decision of District Court of Appeal reversed and cause remanded to that court with directions.


Married woman may own separate property, enter into contracts, sue and be sued, engage in business, and otherwise conduct affairs almost with same absence of restraint as if she were a feme sole. F.S.A. 708.08.

Married woman, who was living congenially with her husband who was domiciled in another jurisdiction, was entitled, in absence of any finding of bad faith, to establish residence in her separate property and thereby receive tax benefits under Homestead Exemption Amendment. F.S.A.Const. art. 10, 7; F.S.A. 192.14, 192.19, 708.08-708.10.

*514 Henderson, Franklin, Starnes & Holt and Duane A. Reynolds, Fort Myers, for appellant.
R. W. Shaughnessy, Fort Myers, for appellee.

THORNAL, Justice.

We have for review on appeal a decision of a District Court of Appeal, which initially construed a controlling provision of the Florida Constitution.
We must decide whether a married woman, living congenially with her husband, may establish a residence in her separate property and thereby receive the tax benefits provided by Article X, Section 7, Florida *515 Constitution, F.S.A., otherwise known as the Homestead Exemption Amendment.

The undisputed facts are revealed by the decision of the District Court. Schooley v. Judd, Fla.App., 149 So.2d 587. For a number of years prior to 1958, Mrs. Judd and her husband owned certain real estate in Lee County. During this period they were both residents of Florida. In December 1958, Mr. Judd conveyed the property to his wife. At that time he announced the removal of his domicile from Lee County to Washington, D. C., where he also owned a home. He changed his domicile for business reasons to enable him to meet certain legal requirements to serve on the board of directors of a corporation in the District of Columbia. Mrs. Judd continued to occupy the Florida property. She also continued to vote in Lee County. She holds a Florida drivers license and maintains a Florida license tag on her automobile. The Judds continue to live together harmoniously as husband and wife and for extended periods of each year reside together in the home on the real estate in question.

In the year 1961 Mrs. Judd applied for the constitutional homestead tax ememption benefits provided by Article X, Section 7, Florida Constitution. The county tax assessor refused to allow the claimed exemption for the announced reason that:
'Husband claims domicile other than Florida. Domicile of wife follows that of husband unless separate set-up for purpose of legal separation or divorce.'

The County Commissioners, as a board of equalization, upheld the decision of the tax assessor. Mrs. Judd thereupon instituted the instant proceeding for a declaratory decree pursuant to Section 192.19, Florida Statutes, F.S.A. The chancellor found with the plaintiff. He held that she was entitled to the claimed exemption.

Initially, the decree was brought to this Court by direct appeal from the circuit court. Having the view that the chancellor did not, by his decree, construe a controlling provision of the Constitution, we transferred the appeal to the District Court of Appeal, Second District. Schooley v. Judd, Fla.1962, 142 So.2d 727. The District Court, by its decision now under review, did construe a controlling constitutional provision. The matter now comes to us on appeal to review that decision.

The appellant here has also filed a petition for a writ of certiorari to review the same decision because of alleged conflicts with prior decisions of this Court. This procedure apparently was adopted out of an abundance of caution in the event that we should decline jurisdiction of the appeal. Our examination of the decision of the District Court has led us to conclude that that court did initially construe a controlling provision of the Constitution. We, therefore, take jurisdiction of the appeal and simultaneously deny the collateral petition for certiorari.

It should be recalled that the chancellor granted the claimed exemption. The majority of the District Court reversed. In doing so the District Court looked to the language of Article X, Section 7, Florida Constitution, which reads in part as follows:
'Every person who has the legal title * * * to real property in this State and who resides thereon and in good faith makes the same his or her permanent home, * * * shall be entitled to an exemption * * *. The Legislature may prescribe appropriate and reasonable laws regulating the manner of establishing the right to said exemption.'

The District Court took cognizance of the rule that normally it is generally recognized that a wife's residence or domicile is that of her husband. It further noted the now accepted exemption to the effect that a wife may acquire a separate residence 'if it should become proper or necessary*516 for her to do so.'Merritt v. Merritt, Fla.1951, 55 So.2d 735. By its decision, which we now review, the District Court held that the constitutional requirement of 'good faith' implicitly impells the conclusion that a married woman cannot, in good faith, establish a separate residence unless she is compelled to do so by the necessity of a degenerating marital relationship. Stated otherwise, it was the holding that in order to establish 'good faith' the married woman must disclose facts which would demonstrate that it is necessary for her to live separate and apart from her husband. This led to the conclusion that when a husband and wife continue to live congenially in the marital relationship, as is the case here, the wife cannot legally establish a Florida residence when her husband is domiciled in another jurisdiction.

We have the view that the decision of the District Court places too great an emphasis on the common-law fiction that by marriage a woman's identity is absorbed into that of her husband. Under this concept, which permeated the law for several hundred years, it was held that upon marriage a woman lost her independence as a legal entity; her property immediately came under the control of her husband; he was entitled to her earnings, if any; she was in all respects subject to his control and domination. Indeed, the rule was as Milton expressed it in Paradise Lost, Book X, Line 195:
'And to thy husband's will Thine shall submit; he over the shall rule.'
However, we have traveled a long way since Milton, as every husband knows. We deem it unnecessary to continue to cloud the law with the mist of an out-moded fiction that has been dispelled by the light of present-day realities.

Married women's 'emancipation statutes,' such as Sections 708.08-708.10, Florida Statutes, F.S.A., enacted twenty years ago, have demonstrated a legislative intention to liberate married women from most of the economic bonds which previously subordinated them to the control of their husbands. In many areas where the legislatures have not acted, the women themselves have taken over and announced their own independence and equality. While continuing to recognize the traditional responsibilities of mothers and housewives, they have moved out into social, political, and economic affairs. They now own or control much of the wealth of the county; they compete in business; they have become governors, judges and legislators, and, when needed, they have joined the ranks of breadwinners.

Article X, Section 7, Florida Constitution, as amended in 1938, eliminated from the exemption requirements, the necessity that one be the 'head of a family', or even a 'citizen' of Florida to enjoy the homestead exemption tax benefit. An individual property owner enjoys the benefit even though he occupies the property alone. Florida citizenship is not required. Smith v. Voight, 158 Fla. 366, 28 So.2d 426. All that is now required is that the property owner reside on the property and in good faith make 'the same his or her permanent home * * *.' By Section 192.14, Florida Statutes, F.S.A., the Legislature has made it clear that permanent residence 'shall not be construed so as to require continuous physical residence on the property * * *.' By this statute residence or permanent residence means only that place 'which the person claiming the exemption may rightfully and in good faith call his home to the exclusion of all other places * * *.' The cited statute is merely a legislative implementation of the clear import of the Constitution itself.

Under modern statutes a married woman may now own separate property, enter into contracts, sue and be sued, engage in business, and otherwise conduct her affairs almost with the same absence of restraint as if she were a feme sole. Section 708.08, supra. We agree with the Virginia Supreme Court of Appeals when it held that there is no valid reason to prohibit*517 her from establishing a residence of her own even though she continues to live in a congenial marital relationship with her husband, who happens to be domiciled in another jurisdiction. When a claim is made for benefits, such as those announced by the Florida Constitution, it is, of course, essential that the residence be established in good faith but we see no justification for adding the requirement that the independent residence of the wife must come about as the result of a necessity that drives her from a former conjugal abode. Commonwealth of Virginia v. Rutherfoord, 160 Va. 524, 169 S.E. 909, 90 A.L.R. 348. In 1947 the Attorney General of Florida reached a similar conclusion in construing Article X, Section 7, supra. Opinions of the Attorney General, 047-389.
In the instant case there was no finding of bad faith. The exemption was denied purely on the theory of the fiction which has no place in present-day life. This led to the further requirement that good faith can be demonstrated only if it is coupled with a showing of necessity for a separate residence. Our holding simply is that a showing of necessity to establish the separate abode is not essential to a showing of good faith under Article X, Section 7 supra.

We have not overlooked our recent opinion in Juarrero et ux. v. McNayr et al., Fla., 157 So.2d 79. There we simply held that an alien living in Florida under a temporary visa could not obtain the benefits of homestead exemption because it was legally impossible for him to claim the property as his 'permanent home.' The distinction is that in the instant case we have held that it is legally possible for a married woman, in good faith, to claim a permanent home in Florida property even though her husband is legally domiciled elsewhere. Whether 'good faith' is proven is a matter to be decided in each case. Here the only question was whether proof of necessity was an essential element of proof of 'good faith.'

The decision of the District Court of Appeal is reversed and the cause is remanded to that court for the entry of a judgment consistent herewith.
It is so ordered.

ROBERTS, Acting C. J. CALDWELL and HOBSON (Ret.), JJ., and WALKER, Circuit Judge, concur.


Fla. 1963
Judd v. Schooley
158 So.2d 514
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#4 | Posted: 24 Nov 2006 07:25 
Law v. Law, 738 So.2d 522, 24 Fla. L. Weekly D1924 (Fla. 4th DCA 1999)

738 So.2d 522, 24 Fla. L. Weekly D1924
District Court of Appeal of Florida,
Fourth District.
Phyllis M. LAW, Appellant,
v.
Robert R. LAW, Barbara Law, Kimberly Pero and Teresa Fitzsimmons, Appellees.
No. 98-2416.
Aug. 18, 1999.

Former wife sought to enforce lien against former husband's residence. The Circuit Court, Broward County, Estella May Moriarty, J., found that residence was entitled to homestead exemption, and former wife appealed. The District Court of Appeal, Klein, J., held that: (1) former husband's contract to sell his home did not, as a matter of law, preclude him from taking homestead exemption, and (2) as a matter of first impression, former husband was entitled to exemption, even though he and current wife, from whom he was separated, owned another home for which they claimed homestead exemption.
Affirmed.

Exemption from liens for homestead is limited to the residence of owner or owner's family, and requires actual occupancy of home with intention to remain there. West's F.S.A. Const. Art. 10, 4.

Contract for sale of residence does not as matter of law end homestead status. West's F.S.A. Const. Art. 10, 4.

Former husband's contract to sell his mother's home, in which he permanently resided from period prior to his mother's death until property was sold, did not, as a matter of law, preclude former husband from having homestead exemption from former wife's lien.

Husband, who permanently resided in separate home from wife, was entitled to homestead exemption on that residence from former wife's lien, even though husband and current wife owned another home for which they claimed homestead exemption, where there was no indication that husband and wife were separated for illegitimate reasons. West's F.S.A. Const. Art. 10, 4.

*523 Christopher B. Knox and William P. Doyle, Hollywood, for appellant.
Linda A. Conahan and Ann M. Burke of English, McCaughan & O'Bryan, P.A., Fort Lauderdale, for appellees.

KLEIN, J.
Appellant is the former wife of appellee Robert Law and has a judgment against him for support payments. The issue presented by this case is whether, when Robert inherited his mother's home, it became his homestead and therefore exempt from execution. Robert and his present wife Barbara own another home as tenants by entirety, but they had become separated and Robert was living in his mother's home at the time of her death. We affirm the trial court's finding that the inherited home was Robert's homestead.

In May, 1995, Robert and his present wife, Barbara, became separated. Robert moved out of the Hollywood home, which he and Barbara owned as tenants by entirety, and moved into the home owned by his mother in Davie. He took with him his minor great-grandson, for whom he is the legal guardian. Robert received his and his ward's mail at the Davie property from the time they moved in. In February, 1997, Robert's mother became very ill. Robert then asked his wife, Barbara, to help him take care of his mother, and Barbara moved into the Davie home. She continued to live there with Robert until the Davie home was sold.

After Robert's mother became ill, it was decided that the Davie home should be sold in order to pay for medical care for Robert's mother. Robert's mother gave him a power of attorney, which he used to sign a contract for sale to the appellees Pero and Fitzsimmons. Robert's mother died in March, 1997, and a few weeks later, in April, Robert filed a designation of homestead claiming the Davie home as exempt property. He then filed this declaratory action seeking to declare that home to be his homestead and therefore exempt from liens. On April 22 an order was entered by the probate court determining*524 that the Davie home had passed to Robert as his mother's only heir. The sale to Pero and Fitzsimmons closed on April 28.

The trial court found that the Davie home was Robert's homestead and was thus exempt from Phyllis' judgment, and Phyllis appeals, arguing that (1) the Davie home could not be homestead because the Hollywood home was Robert's homestead, and (2) that Robert's dealings constituted fraud.

The homestead exemption in Article 10, section 4 of the Florida Constitution is "limited to the residence of the owner" or the owner's family. It requires "actual occupancy of a home with intention to remain there." In re Van Meter's Estate, 214 So.2d 639, 643 (Fla. 2d DCA 1968)(quoting Croker v. Croker, 51 F.2d 11 (5th Cir.1931)).

One argument advanced by Phyllis is that the fact that Robert had contracted to sell the Davie property prior to his mother's death precludes a finding that he had an intent to make the Davie property his residence after his mother died. A contract for sale, however, does not as a matter of law end homestead status. In re Estate of Skuro, 467 So.2d 1098 (Fla. 4th DCA 1985) and cases cited. See also Orange Brevard Plumbing and Heating Co. v. La Croix, 137 So.2d 201 (Fla.1962)(even the sale of a homestead does not necessarily destroy its status, because the proceeds may be utilized to purchase a new homestead without losing the exemption). The trial court found as a matter of fact that Robert was permanently residing in the Davie home prior to his mother's death and continuously thereafter until the property was sold. The agreement to sell, does not, as a matter of law, preclude Robert from having the homestead exemption.

The more difficult question is presented by the fact that Robert and his present wife have at all times owned a home in Hollywood for which they claimed a homestead tax exemption. Phyllis argues that the Davie home could not be homestead because the Hollywood home was, as a matter of law, Robert's homestead, and a person cannot have two homesteads.
In Myers v. Lehrer, 671 So.2d 864, 866 (Fla. 4th DCA 1996), we expressed the general principles which should guide us:
Historically, the purpose of the homestead provision was to protect the family, to "provide it a refuge from the stresses and strains of misfortune." Collins v. Collins, 150 Fla. 374, 7 So.2d 443, 444 (1942); City Nat'l Bank v. Tescher, 578 So.2d 701, 702 (Fla.1991). The 1985 amendment to article X, section 4 extended the protection to a "natural person," without regard to status as head of a family. Cain v. Cain, 549 So.2d 1161, 1163 (Fla. 4th DCA 1989). The homestead exemption is liberally construed for the benefit of those whom it was designed to protect. Id.

With the exception of a bankruptcy case, the issue presented is one of first impression. In Colwell v. Royal International Trading Corp., 226 B.R. 714 (S.D.Fla.1998), the bankruptcy court held that a husband and wife who had been living separately for more than three years could not each claim a homestead exemption under the Florida Constitution, but on appeal, the district court reversed. Although the facts are not identical, Colwell is significant because it recognizes that married people who live separately can each have a homestead exemption. In Colwell, at the time they filed their bankruptcy petition, the husband and wife were married, but had been separated for over three years and living in residences owned individually by each. Each had obtained a homestead exemption for tax purposes. Relying on the same principles this court relied on in Myers, the district court judge reversed the bankruptcy court and allowed homestead exemptions to each spouse.

*525 One of the things we noted in Myers was that the 1985 amendment to our homestead exemption in the constitution extended the exemption to a "natural person" regardless of whether the person was the head of a family. Following that, our supreme court said in Public Health Trust of Dade County v. Lopez, 531 So.2d 946, 948 (Fla.1988):
As a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.

We see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements of the exemption. When we say "legitimately" we mean that there is no "fraudulent or otherwise egregious act" by the beneficiary of the homestead exemption. Isaacson v. Isaacson, 504 So.2d 1309 (Fla. 1st DCA 1987); see also Radin v. Radin, 593 So.2d 1231 (Fla. 3d DCA 1992). In the present case there was no evidence that Robert and Barbara's separation in May, 1995, was for anything other than legitimate reasons, and ample evidence to support the trial court's finding that he was residing in the Davie home when he inherited it, with the intention to remain there until it was sold.FN1

FN1. Phyllis also argues that there was fraud because in connection with the power of attorney Robert either had his mother execute a quit claim deed or signed his mother's name. Whether Robert's intent was fraudulent was an issue of fact, and there was evidence to support the trial court's rejection of this theory.

We agree with Phyllis that Robert cannot have two homesteads, and that a husband and wife in an intact marriage cannot have two homesteads. Under the facts in this case, however, we see no reason why Robert's homestead could not be different from the homestead of his wife, where their separation was bonafide, and it was Robert's intent to reside in the Davie home. We therefore affirm.

GROSS and HAZOURI, JJ., concur.


Fla.App. 4 Dist.,1999.
Law v. Law
738 So.2d 522, 24 Fla. L. Weekly D1924
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#5 | Posted: 26 Jan 2007 07:35 
Although the above authorities are the law of the subject matter, it would be wise to discuss the issue with your local county property appraiser and attorney before making a final decision, as the property appraiser has the presumption of correctness and can create an issue for litigation.
http://www.floridahomesteadservices.com

Author johnbsims3
Admin Male

#6 | Posted: 31 Jan 2007 08:41 
A married woman and her husband may establish separate permanent residences without showing "impelling reasons" or
"just ground" for doing so. If it is determined by the property appraiser that separate permanent residences and separate "family
units" have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption
from ad valorem taxation under Article VII, Section 6, 1968 State Constitution. The fact that both residences may be owned by both
husband and wife as tenants by the entireties will not defeat the grant of homestead ad valorem tax exemption to the permanent
residence of each.
Fla. Administrative Code 12D-7.007(7)
http://www.floridahomesteadservices.com

Real Property Ad Valorem Tax Exemption Florida Homestead Services - Florida Homestead Exemption Act Forum / Real Property Ad Valorem Tax Exemption /
Married, Separate Residences, Two Homestead Exemptions, Living Apart, Legally Separated
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