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Can Divorce Order Defeat Homestead Protection?
A man is going through a divorce proceeding in California. The man and his wife sell their California house. The husband takes all the sales proceeds and gives his wife other assets including his retirement account. The husband then moves to Florida and buys a homestead property with the proceeds from the sale of the California house. . The man becomes a Florida resident. At the end of the divorce proceeding the judge orders the man to pay additional money to his ex-wife from the house sale proceeds now invested in the Florida homestead. The man asked whether his homestead is protected from the order of the California divorce court.
Florida’s homestead laws offer broad creditor protection, but there are some exceptions. Florida courts have permitted partition (forced sale) of homestead in divorce proceedings to effect an equitable distribution of assets. If the wife domesticated the California divorce order in Florida, I suspect a Florida court may order the sale of the husband’s homestead to give the wife her share of the house equity as determined in California.
posted by Jonathan Alper, asset protection and bankruptcy attorney, Orlando, Florida
March 1, 2007 in Homestead Protections | Permalink
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Posted by: Raj | Jan 3, 2009 3:25:34 PM
That's just what happened in Riechers v. Riechers, 679 N.Y.S.2d 233 (1998). The husband set up a Cook Islands trust / domestic LP combo with marital assets (unknown to his wife). The New York court essentially said that the trust assets were marital assets, and although the wife could and should purse the assets in the Cook Islands, it wouldn't bother with them because it didn't need to. The court simply ordered that she receive an amount which could be satisfied with marital assets in the U.S. and outside the trust. So, in the end, the wife got just what she would have gotten had the husband not set up the offshore trust structure. The husband got to keep the trust, but she got most of what was outside the trust.
Posted by: Chris Riser | Apr 6, 2007 3:01:49 PM
Even if they couldn't, I've seen divorce courts order inequitable division of some assets in order to compensate for their inability to attach other assets. They also frequently ignore the separate property rules and give, in effect, half of a spouse's (always the husband, never the wife) separate property to the other spouse by ordering an unequal division of joint property.
Posted by: Bob Smith | Mar 2, 2007 12:01:50 AM
