A common asset protection question is what happens to homestead upon divorce. Typically, homestead property is owned jointly by husband and wife as tenants by entireties. Upon divorce, the tenants by entireties is broker and the homestead is owned by husband and wife as tenants in common. After one spouse moves out of the house the question arises as whether either spouse has homestead protection.
The answer probably is that the spouse who finds a new residence no longer has protection of their interest in the homestead against that spouse’s individual creditors. The moved spouse can no longer claim the property as primary residence and the divorce has terminated tenants by entireties protection otherwise available for all real estate, homestead or not homestead, owned jointly by married couples. The spouse who remains resident in the homestead still has homestead protection of their 50% interest in the equity. The fact that the property is owned now as tenants in common has no effect on homestead protection. As at least one Florida bankruptcy court has stated, “The homestead exemption provided for under the Florida Constitution makes no distinction between the types of ownership interests in land that qualify for the exemption, and has been interpreted as applying to any interest in land.” (emphasis added) In re Ballato.
posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida