I get frequent questions about what is required to become a Florida resident in order to benefit from Florida homestead protection and other creditor protections under Florida law. Not infrequently, this question comes from people who are not U.S. citizens but who reside in Florida. Several bankruptcy court decisions have held that people without “green cards” which entitled them to permanent U.S. residency are not entitled to homestead protection. The bankruptcy courts ruled that non-citizens without green cards cannot by law intend to make their Florida residence a permanent residence until they have the legal right to remain in Florida permanently under immigration laws. There have been relatively few decisions on this issue in Florida’s appellate courts. However, during the first week of May, 2006, the Second District Court of Appeal (“DCA”) issued an opinion consistent with prior bankruptcy court opinions.
The DCA held that a debtor with a temporary visa could not form the requisite intent to become a permanent Florida resident for purposes of the homestead exemption. The Appellants immigrated from Switzerland and have legally resided in Florida for five years. They had social security numbers and drivers licences, paid income tax, and had filed a Declaration of Domicile in Florida.
Nevertheless, the DCA held that they were not permanent residents of Florida. The Court cited a 1963 case by the Florida Supreme Court which held that an alien residing in the U.S. with a temporary visa does not have the legal ability to convert a temporary residence into a permanent home. The decision went further to discuss various guidelines of permanent residency provided by different Florida statutes and by the Florida Administrative Code. The DCA case has not been assigned a citation reference.
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