Can a married couple have two separate exempt Florida homesteads? I frequently hear this question rom married couples trying to protect two homes from their joint creditors under Florida’s Constitutional homestead exemption where each spouse owns individually one of the two homes. When only one spouse is a concerned debtor then protection is not difficult. If spouses own a home jointly then the home is exempt as tenants by entireties property from the creditors of the debtor spouse. But, if the spouses are liable to a joint creditor or subject to a joint judgment then only a multiple homestead exemption can protect the two homes under the Constitution’s homestead clause. In such case, many joint debtor spouses want to know whether they each can claim a creditor homestead exemption from the house they own in their respective names.
Florida law recognizes that in some situations married couples who are joint debtors can have separate homesteads. But two separate homesteads is a rare exception, and the multiple homestead exemption must be proven by applicable facts. Many families own multiple homes for either investment or family vacation, but most families have one residence that the family calls “home.” Qualifying for two homesteads in one family is not easy.
Florida marital law does not include a status of “marital separation.” Floridians are married or divorced, but not ‘legally separated.” Most courts will recognize a possibility that married couples may be physically separated, and living in separate residences, as they try to repair a marriage or living separately as an interim step in a divorce process. The debtor and his spouse must be legitimately separated and living separate lives in different primary residences. Florida courts have stated that a husband and wife of an “intact marriage” cannot easily qualify for separate and multiple homestead exemptions. It may be possible that happily married couples could permanently reside separately if their separate homes are required for their careers.
Some clients have suggested that each spouse’s filing a separate homestead tax exemption would qualify each for homestead asset protection of separate homes. Florida laws concerning the homestead tax exemption and Florida asset protection laws are complimentary but also independent. That a tax authority granted spouses separate real estate tax deductions for separately claimed homestead properties does not mean that the spouses can protect both of their separately owned homes from joint creditor claims under the Constitutional homestead exemption.
Couples cannot assert separate homesteads to defraud creditors. Courts will look closely at the timing of a married couple’s dual homestead assertion. For example, a court is unlikely to recognize dual homestead exemptions from creditors if a married couple occupied a single family residence since being married, and when both spouses encountered a joint creditor or judgment they then risks took steps to claim two separate homesteads.
Sometimes this question is presented by out-of- state clients want claim Florida residency to protect assets, but they really do not want to move their entire family to Florida. These out-of-state debtors ask whether they can invest in a Florida property and claim the property as the debtor spouse’s homestead while their non-debtor spouse remains in their family home in another state. The analysis is the same as for two Florida resident spouses. There is no homestead protection of the Florida house if the spouses and their family base their lives in their out-of-state home. These out-of-state situations are difficult if the family has children who continue to attend school outside of Florida.
I have occasionally encountered two spouses who legitimately could claim two separate homestead exemptions. In most cases, the facts do not support separate and independent homesteads for marital or career reasons, and the claim of joint homesteads has the appearance of a contrivance to avoid creditors. Here are five important factors to consider in evaluating separate marital homesteads:
- Is there evidence of a deteriorating marriage that reasonably calls for each spouse to maintain separate lives in different homes?
- Does each spouse maintain almost all personal belongings at separate homes?
- If children, where do the children live and where do they attend school?
- Does each spouse use respective home address for all purposes including tax returns, drivers license, car registration etc.?
- Did separate homestead arrangements precede legal problems?
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