Written by attorney Dustin Michael Butler

My spouse and I want to sell the marital home and split the proceeds to purchase new, separate homes

More than likely yes, however the language in the agreement will be very important. Florida’s Constitution provides for significant protections to homestead property provided certain requirements are met. This protection extends to the sale of the home to purchase a new home. However, in the case of a divorce, sometimes the parties agree to sell the marital home and divide the funds.

Language in this agreement can be very important. In a 1996 Fourth District Court of Appeal Case the husband agreed: "Judgments, Liens, and Lawsuits Satisfied: The Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property. Husband shall further be responsible for any and all potential claims, lawsuits, or judgments pending against him individually or in connection with his profession." Myers v. Lehrer, 671 So. 2d 864 (Fla. 4th DCA 1996). In that case the Court found that the Husband’s share of the proceeds were subject to claim by third party creditors.

However in a recent case out of the Third District Court of Appeal, the Court found different language to provide protection from creditors, specifically, from a previous marriage’s child support claim. In that case the parties agreed:"The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties’ Marital Settlement Agreement or Addendum thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds. This shall include, but not be limited to, lien(s) from the Husband’s attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto."Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). InKerzner, the Husband, once the liens were satisfied, intended to reinvest his share of the funds into a new home.

The Court found the lack of the language “any and all outstanding judgments pending against," from theMyers, case made it distinguishable and Husband’s share was protected from creditors other than creditors of the marital home.

As previously mentioned, the specific creditor at issue here was his previous Wife claiming past due child support. This is an important secondary point from this case that even child support claims are unable to collect on Florida Homestead. .

See, Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). See also, Myers v. Lehrer, 671 So. 2d 864 (Fla. 4th DCA 1996).

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