Distribution of Assets after Divorce
Upon divorce or separation in Florida, the courts will typically order for the equitable distribution of marital assets and liabilities. Courts can allocate the marital assets 50/50 unless there are factors that make the equitable distribution discriminatory. When the spouses go through a divorce, one of the partners moves out the joint home. The question that arises quite often is: Who between the husband and wife should have access to the homestead property?
http://www.plea.org explains that that only marital property and liabilities are subject to the 50/50 principle. Marital property is all the property and debts acquired jointly by the marriage partners. Separate assets will remain in the name of the spouse who owns it. The Florida divorce lawyer can prepare a list of the joint assets and debts for the clients in readiness for the homestead property case.
What is Homestead Property?
Homestead property is a special class of real estate protected by the Florida Constitution and Statutes. The husband and wife normally are the joint owners of the homestead property as tenants by entireties. As per the Florida Statute 689.115, the homestead property is owned by the marital union, rather than by the individual spouses.
The Florida Constitution defines homestead property as the couple’s principal place of residence up to one-half acre within a municipal area and up to 160 acres outside a municipality. As explained in Article X, Section 4 of the Florida Constitution, homestead property is not subject to taxation and execution by judgments. A creditor or court judgment cannot force the sale of your homestead.
Homestead Law in Marriage
During the marriage, neither spouse may transfer their interest in the homestead property without the other spouse consenting to the transfer. A creditor of one spouse cannot get in the way of the property without both spouses being party to the agreement.
For instance, one partner cannot mortgage the homestead property unless the couples agree to it. Similarly, neither spouse can give the homestead property to a third party in a will without the other spouse’s agreement.
Homestead Law upon Divorce
Divorce may affect your right to the homestead property significantly. If there is a divorce, the provisions limiting one spouse from making sole decisions on the primary family assets can become irrelevant.
- The spouse who finds a new home no longer has the protection of their interests in the family residence against that spouse’s individual creditors.
- The vacating partner may no longer claim the homestead property as the family primary residence.
- Divorce may be viewed as the termination of the tenants by entireties protection that the married couples enjoy.
- Only the spouse who still resides in the homestead can enjoy protection of their 50 percent of equity.
- In a judgment by a Florida Bankruptcy Court, the homestead protection against bankruptcy or creditors may cease upon divorce.
Protecting Your Rights to Homestead Property
You should consult an experienced Florida divorce lawyer to help you navigate the intricacies of property sharing during the court proceedings. Consult Konicek Law today for a consultation.