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Can an Equitable Lien be Imposed on Homestead Property in Florida?

Uncategorized • Apr 29, 2019

What is homestead property in Florida? What should probate lawyers and divorce attorneys know about homestead laws in Florida? Can an equitable lien be imposed on someone’s homestead property? Can someone be forced to sell their homestead property? An April 24, 2019 Third DCA opinion, Luis de Diego v. Barrios, discusses these issues.

Although this is a Florida divorce case, not a probate case, probate lawyers frequently encounter lawsuits involving homestead property. Here, in a Final Judgment of Dissolution of Marriage, the court found that the house the parties lived in while married, although solely in former husband’s named and purchased before the marriage, was marital property. Therefore, it awarded the former wife half of the value of the home, which was to be paid by former husband within ninety days of the judgment. About a year later, the wife filed an action because the former husband had not paid her the money for the house. The trial court entered an order requiring the former husband to pay what the wife was owed within five days, or refinance or sell the home in order to pay her.

The husband appealed arguing that he didn’t have the resources to pay the former wife, and that the “trial court lacked the authority to render the sale or refinancing of the marital home, as it would improperly modify the property rights set forth in the Final Judgment and violate the Florida Constitution’s homestead exemption.” What did the appellate court decide? To read the entire opinion, click here.