Generally, the law gives judges significant discretion when it comes to the orders they hand down in family law cases, especially when it comes to division of assets and debts. The court can demand that a particular spouse pay a particular debt and can impose requirements regarding how to pay it, such as demanding that the marital home be sold–at least in most circumstances. However, Florida constitutional law creates some very strong protections for homestead property, and sometimes the homestead exemption protection can have an impact on a family law case. To make sure you’re not forced into selling your home when you don’t have to, be sure to retain an experienced Florida family law attorney.
As an example of a conflict between debt assignment in a divorce and the homestead exemption, there’s the recent case of S.A.S. and J.S. The pair were going through divorce in Broward County, and their divorce included issues that required the retention of a guardian ad litem. Guardians ad litem often become involved in divorce cases involving minor children if the case is especially litigious or there has been an allegation of child abuse or neglect.
In a family law case, a guardian ad litem is often a local attorney and is entitled to payment of fees for the service she provides. Many times, the guardian ad litem may be paid by the hour. The guardian ad litem’s fees are owed by the litigants, which means that this is one more marital expense that the court must decide who pays.
In S.A.S. and J.S.’s case, the trial judge ordered the sale of the couple’s marital home in order to satisfy the guardian ad litem’s fees. In some situations, that type of order might be allowable. However, in this case there was a complication: the marital home was the wife’s homestead property.
There is a wide array of creditors who are allowed to pursue a broad spectrum of a debtor’s assets but are not allowed to go after homestead property. Previous rulings by the Florida Supreme Court have made it very clear that a court may order the forced sale of a homestead property only in a few narrow situations. Basically, those are: (1) to pay the taxes or assessments on the property (a “tax sale”), (2) to pay debts related to the purchase, improvement or repairs of the property (this includes foreclosures,) and (3) “obligations contracted for house, field or other labor performed on the realty.”
A guardian ad litem who is owed fees related to the services she provided is, within the world of debtor-creditor law, something called an “unsecured creditor.” Unsecured creditors are not one of the items on the list of exceptions to homestead protection. The trial judge’s order effectively created a lien on the homestead property for the amount of guardian ad litem fees. Under the terms of the Florida Constitution, that was not allowed and the forced sale was unconstitutional.
For the family law issues that you’re facing, reach out to the South Florida family law attorneys at Sandy T. Fox, P.A. Our attorneys have been providing clients with the effective representation they need to get positive results. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
What Happens to Marital Assets that Were Diminished or Spent Completely During the Course of Your Florida Divorce Litigation?, Fort Lauderdale Divorce Lawyer Blog, Sept. 13, 2018
Florida Ex-Wife, as an Alimony Creditor, Was Allowed to Pursue Ex-Husband’s Insurance Assets, Homestead Property if Fraud Was Involved, Fort Lauderdale Divorce Lawyer Blog, May 26, 2017