Homestead and Divorce in Florida

A divorce reshapes homestead protection in ways that catch many Florida homeowners off guard. During the marriage, the homestead typically carries two overlapping layers of creditor protection: the constitutional exemption from forced sale under Article X, Section 4 and the tenancy by the entireties shield that prevents a creditor of one spouse from reaching jointly held property. A divorce eliminates the second layer entirely and may diminish the first, depending on which spouse remains in the home and how the property is allocated in the final judgment.

Tenancy by Entireties Severance

Most married couples hold the family home as tenants by the entirety, a form of joint ownership that treats the marital unit as a single entity for purposes of creditor protection. While the marriage is intact, a creditor holding a judgment against only one spouse cannot force the sale of entireties property or attach a lien to it. This protection operates independently of the homestead exemption and covers the property even if the spouses have individual debts.

Divorce severs the tenancy by the entireties automatically. Once the marriage ends, the former spouses hold the property as tenants in common, each owning an undivided fifty percent interest. Tenants in common ownership carries no creditor protection of its own. If the departing spouse has a judgment against them, that creditor can now reach the departing spouse’s fifty percent interest in the property. This exposure arises immediately upon entry of the final judgment of dissolution, not at some later date.

The spouse who continues to reside in the home retains the constitutional homestead exemption for their fifty percent interest. The exemption attaches to the interest of anyone who occupies the property as a primary residence, regardless of how title is held. Tenancy in common does not defeat homestead status for the occupying co-owner. However, the non-occupying ex-spouse’s interest is no longer shielded by either entireties ownership or the homestead exemption, because that spouse no longer resides in the property.

Equitable Distribution of the Homestead

Florida is an equitable distribution state. Under Florida Statute § 61.075, the court divides marital assets and liabilities with the premise that the distribution should be equal, unless the circumstances justify an unequal split. The marital home is subject to equitable distribution if it was acquired during the marriage or if marital funds were used to pay down the mortgage or improve the property.

The court has several options for distributing the homestead. It may award exclusive ownership to one spouse, order the property sold with the proceeds divided, or grant one spouse exclusive possession for a period of time while the other retains an ownership interest. Section 61.075(8)(h) specifically contemplates the desirability of retaining the marital home as a residence for a dependent child when it is in the child’s best interest and financially feasible.

When the court awards the homestead to one spouse, that award is treated as a spousal support obligation rather than an equitable distribution award. This distinction matters for enforcement purposes. A failure to deed the property to the receiving spouse pursuant to the divorce judgment is enforceable by contempt of court, meaning the transferring spouse faces potential incarceration for noncompliance. Equitable distribution awards, by contrast, are enforced as ordinary money judgments.

Homestead Protection After the Award

The spouse who is awarded the homestead and continues to reside in it enjoys the full constitutional exemption from that point forward. The property remains exempt from forced sale by the recipient spouse’s creditors, including creditors whose claims arose before the divorce. From an asset protection perspective, a spouse who receives the homestead in a divorce settlement is in a strong position: the home is protected by the constitutional exemption, and the homestead cannot be waived by any clause in a loan agreement or other unsecured instrument the spouse may have signed previously.

The spouse who does not receive the homestead loses homestead protection for any interest they retain in the property. If the divorce judgment requires the non-occupying spouse to transfer their interest by quitclaim deed, the transfer between spouses of homestead property where the only consideration is the existing mortgage is exempt from documentary stamp tax under Section 201.02(7)(b). The departing spouse should ensure that the deed transfer is completed promptly, because retaining a tenancy in common interest in property the spouse no longer occupies creates an unprotected asset that creditors can reach.

Support Obligations Versus Equitable Distribution

The distinction between support obligations and equitable distribution is critical because the collection tools available to an ex-spouse differ depending on the category of the obligation. Alimony, child support, and the award of the marital home are classified as support obligations. An ex-spouse owed support can seek enforcement through contempt of court, which carries the threat of incarceration. Most Florida exemptions, including homestead in practical terms, offer limited protection against support obligations because few debtors will accept jail time rather than comply with a court order.

Equitable distribution obligations are treated as ordinary money judgments. The ex-spouse who is owed a share of cash, investment accounts, or other non-support assets must collect on that judgment using the same tools available to any creditor: garnishment, execution on non-exempt assets, and liens on non-exempt property. The constitutional homestead exemption protects the debtor spouse’s home from these collection efforts just as it would protect against a bank or credit card company.

This means that a spouse who receives the family home and is also ordered to pay an equitable distribution obligation to the other spouse can shield the home from collection of that obligation. The equitable distribution judgment does not attach as a lien to the homestead, and the ex-spouse cannot force the sale of the home to satisfy the unpaid equitable distribution amount.

The Equitable Lien Question

Florida district courts of appeal have recognized a narrow exception that permits an equitable lien on homestead property when the homeowner has used fraud or egregious conduct in connection with support obligations. In Havoco of America v. Hill, 790 So.2d 1018 (Fla. 2001), the Florida Supreme Court held broadly that converting non-exempt assets into a homestead to defeat creditors does not forfeit the exemption. However, the Court left open in footnote 12 whether an equitable lien could be imposed on homestead property when a former spouse uses the exemption specifically to avoid paying alimony or child support.

Several district courts have imposed equitable liens on homestead property in divorce-related cases involving egregious facts. The general principle from the case law is that where the proceeds of fraud or reprehensible conduct are used to purchase or improve the homestead, a creditor may trace those funds and obtain a lien. Whether this principle extends to a former spouse who shields assets in a homestead to avoid paying court-ordered support remains an open question that the Florida Supreme Court has not definitively resolved. The Florida Bar Journal has argued that the Court should follow the unqualified constitutional language and decline to create additional exceptions beyond those enumerated in Article X, Section 4.

Partition Rights

After a divorce, if the former spouses continue to hold the property as tenants in common and cannot agree on what to do with it, either party may file a partition action under Florida Statute Chapter 64. In Tullis v. Tullis, 360 So.2d 375 (Fla. 1978), the Florida Supreme Court held that the homestead exemption does not prevent a co-owner from suing for partition and obtaining a forced sale of the property. The Court reasoned that the divorced spouses were now ordinary co-tenants, and nothing in the constitutional homestead provision prevented one co-tenant from seeking the beneficial enjoyment of their interest through partition.

A partition sale has important creditor implications. The Florida Bar Journal has noted that if the occupying co-tenant’s share constitutes homestead, it remains exempt from the attachment of that co-tenant’s creditors even in a partition sale. The non-occupying co-tenant’s share, however, is subject to all outstanding liens and judgments, which will reduce the net equity that co-tenant receives from the sale proceeds.

Pre-Divorce Planning Considerations

Spouses who anticipate divorce should consider the asset protection consequences before the marriage is dissolved. While the marriage is intact and the property is held as tenants by the entireties, both spouses enjoy the full benefit of homestead protection and entireties protection. Once the divorce is final, the departing spouse’s interest is immediately exposed to individual creditors.

If only one spouse faces significant creditor exposure, the couple may consider structuring the marital settlement agreement so that the debtor spouse receives the homestead rather than non-exempt assets of equivalent value. The settlement should allocate exempt assets to the debtor spouse and non-exempt assets to the non-debtor spouse in proportions that achieve an equitable distribution while optimizing protection. A settlement that appears equitable on its face and reasonably allocates assets is likely to withstand fraudulent transfer scrutiny.

The spousal consent and joinder requirements that apply during the marriage cease to apply after the divorce is final. Once the departing spouse’s interest is transferred, the remaining owner-occupant may sell, mortgage, or otherwise deal with the homestead without the former spouse’s consent. Spouses who are also concerned about protecting non-homestead assets from divorce should evaluate the full range of Florida exemptions, including tenants by entireties ownership of financial accounts, retirement account protections, and annuity exemptions, before those protections are lost through dissolution.