Applying the homestead exemption in spousal abandonment cases; Rose Law Group family law attorney Scott Ghormley comments

By Daily Dose News

Florida’s Third DCA recently addressed the homestead exemption in Article X, section 4(c) of the Florida Constitution in the context of alienation and spousal abandonment of homestead property. Isaacs v. Federal Nation Mortgage Association, No. 3D20-0604, 2022 WL 17660325, at *1 (Fla. 3d DCA Dec. 14, 2022).

Alienation of homestead property occurs, for example, when one spouse takes out a mortgage without the other spouse’s consent. Ostensibly, that is what happened in Isaacs where a husband (Isaacs) and wife purchased and occupied homestead property (the Property) and then separated, but never divorced. Although Isaacs continued to maintain and visit the Property, he did not live at the Property and in 1999 Isaacs quitclaimed his interest in the Property to his wife and purchased another home which he declared his homestead.

In 2005, the wife took out a mortgage on the Property. Although the mortgage contained Isaacs’ signature, he claimed it was a forgery. In 2016 the wife died, and the Property went to Isaacs as the wife’s surviving spouse. The mortgagee, Federal National Mortgage Association (FNMA), initiated foreclosure proceedings against Isaacs and the wife’s estate due to a payment default. Based on the spousal joinder requirement of Section 4(c) and the fact Isaacs claimed his signature on the mortgage was forged, Isaacs argued the mortgage was not valid. FNMA argued that Isaacs “waived the joinder requirement by abandoning the homestead prior to the mortgage.” Isaacs rebutted that the Property was the wife’s homestead when she took out the mortgage, so the joinder requirement still applied regardless of his alleged abandonment of the Property. The trial court agreed with FNMA concluding that Isaacs’ abandonment of the Property prior to his wife taking out the mortgage constituted a waiver of the joinder requirement of section 4(c). The court entered a final judgment of foreclosure in favor of FNMA and Isaacs appealed.

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“The primary purpose of a homestead exemption is to shield certain property from liens and creditors. Public policy leans towards promoting stability and welfare, which is why the homestead exemption is so important and why certain assets – like a home – should be secured beyond the reach of creditors. In my opinion, that was one of the important factors influencing the court’s decision in the Isaacs case despite the allegations of spousal abandonment.”

Rose Law Group family law attorney Scott Ghormley
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