In America, the ability to own a home is part of the American Dream. In furtherance of this, there are numerous laws which encourage home ownership such as the mortgage interest deduction and the concept of the homestead. A homestead is a designation or a lived-in house that gets special protections from creditors. The homestead status of a house can be dramatically affected by a divorce and those protections can be eliminated if the final divorce documents are not properly drafted.
What Is A Homestead in Florida?
A homestead is a building or collection of buildings where people actually live. “[A] homestead [is] a property owned by a natural person… which shall be limited to the residence of the owner or the owner’s family.” Beltran v. Kalb, 63 So. 3d 783 (Fla. 3d DCA 2011).
“[T]he homestead provision is in place to protect and preserve the interest of the family in the family home.” Rudnikas v. Gonzalez, 389 So. 3d 691 (Fla. Dist. Ct. App. 2024).
Labelling a house a homestead “promote[s] this interest ‘by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune.’” Pub. Health Tr. Of Dade Cnty. v. Lopez, 531 So. 2d 946, 948 (Fla. 1988).
“The purpose of homestead is to protect the family, to provide it a refuge from the stresses and strains of misfortune.” Myers v. Lehrer, 671 So.2d 864, 866 (Fla. 4th DCA 1996).
Homestead In Florida When You Are Married
In Florida, labeling a house a homestead keeps one member of the couple from evicting the other party from the home. The Florida Constitution “applies homestead protection to the residence of the owner or the owner’s family. As a result, the married owner of a homestead property may not alienate the property without joinder or consent of his or her spouse.” Yost-Rudge v. A to Z Props., Inc., 263 So. 3d 95, 97 (Fla. Dist. Ct. App. 2019).
“The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift, and, if married, may by deed transfer the title to an estate by the entirety with the spouse.” Fla. Const. art. X, § 4 (2) (c).
The concept of the homestead means that the married person who owns a property cannot simply put their spouse out on the street. The married person who owns property must find their spouse suitable housing… at least until they’re no longer married and are, in fact, divorced.
If you bought or sold a house in Florida while married, you are probably already familiar with this concept as you had to get your spouse’s signature for a waiver of their homestead rights.
A spouse’s waiver of rights must have substantially similar language to the Florida statute’s example: “By executing or joining this deed, I intend to waive my homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.” Fla. Stat. Ann. § 732.7025 (1) (West).
This does NOT override the requirement of joinder when a spouse wants to sell or mortgage the house. The other spouse must be joined.
“Such language may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owner’s spouse.” Fla. Stat. Ann. § 732.7025 (2) (West).
Signing the homestead waiver also does not make the spouse personally liable for the mortgage.
“A mortgage of homestead property is not void when signed by only one spouse, but it is “ineffectual as a lien until such time as either the spouse joins in the alienation or the property loses its homestead status.” Brown v. Towd Point Mortg. Tr. 2017-6, 423 So. 3d 887, 892 (Fla. Dist. Ct. App. 2025), quoting Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 4th DCA 2012).
Homestead and Divorce in Florida
Homestead protections do not end upon a dissolution of marriage. Since the spouses had jointly owned property, their interests become tenancies in common following a divorce. This means that the court can’t order a sale or partition unless the parties agree to sell or file a suit for partition.
“Once the marriage contract was dissolved…appellant and appellee became tenants in common and thereafter it was for them to determine whether the property should be partitioned or whether one should purchase the interest of the other.” Valentine v. Valentine, 45 So. 2d 885 (Fla. 1950).
“[I]n the absence of an agreement between the parties or appropriate pleadings praying for partition of jointly owned property upon the entry of a decree of divorce, a chancellor is without authority to partition jointly owned property.” Gonzalez v. Gonzalez, 156 So. 2d 206, 207 (Fla. Dist. Ct. App. 1963).
“The circuit courts have equity jurisdiction to enjoin the sale of all property, real and personal, that is exempt from forced sale.” Fla. Stat. Ann. § 222.09 (West).
Florida divorce courts can assign the marital homestead to one party, especially where that party is the custodial spouse. A Florida divorce court must consider “the desirability of retaining the marital home as a residence for any dependent child of the marriage…” Fla. Stat. Ann. § 61.075 (h) (West).
“In the case of divorce, an owner may similarly be precluded from residing on the homestead with the family of which he is the head due to an award of exclusive possession to the other spouse.” In re Est. of Melisi, 440 So. 2d 584, 585 (Fla. Dist. Ct. App. 1983).
“Though a man be divorced from his wife, and she entrusted by the decree with the custody of the children and possession of the home…his right to a homestead remains.” Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929).
Homestead and Debt in Florida
Florida has some of the broadest homestead protections against foreclosure. In Florida, your home cannot be foreclosed upon for debt unless your debt falls into three specific categories: mortgages, contractor debts, or unpaid property taxes.
“There shall be exempt from forced sale under process of any court, and no judgment, decree, or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field, or other labor performed on the realty…” Fla. Const. art. X, § 4 (a).
“[T]he homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.” Pub. Health Tr. of Dade Cnty. v. Lopez, 531 So. 2d 946, 948 (Fla. 1988).
Homestead exemptions protect up to 160 acres if your home is located outside a municipality. If you own more land than that, it will protect the portion of land that your house is on. If you live in a municipality, the exemption protects up to .5 acres of land, again limited to where your house is located. Fla. Const. art. X, § 4 (a)(1).
This also comes with a caveat: you cannot convert nonexempt assets into homestead property for the purpose of hindering or defrauding creditors.
For example, in In re Osejo, a debtor liquidated securities and used the profits to improve her homestead. Because of her actions, the money she’d invested into her homestead no longer qualified for the homestead exemption, so she could not file for bankruptcy and had to pay her creditors. In re Osejo, 447 B.R. 352 (Bankr. S.D. Fla. 2011).
The homestead exemption can still be claimed by a spouse after a title-holding spouse dies as long as they continuously maintain the home as their permanent residence.
“[W]here a husband and wife occupy a homestead and where one of the spouses properly applied for and obtained a homestead exemption, the death of one spouse will not destroy the homestead exemption of the other so long as the survivor continues to use the homestead as his or her permanent residence.” Kelly v. Spain, 160 So. 3d 78, 85 (Fla. Dist. Ct. App. 2015).
Owning a house is a big deal. You need to know your rights as a homeowner whether you’re single, married, or about to be divorced. To learn more about your rights as a Florida homeowner as you begin divorce proceedings, contact my Naples, Florida family law firm to schedule a free consultation.
Russell Knight is a Naples, Florida divorce lawyer licensed in Florida since 2018 and licensed in Illinois since 2006. Russell Knight has divorced over a thousand couples and allocated their homes in a way that preserved their homestead rights after divorce.
