On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, October 3, 2012.

The year 2008 saw the birth of a new marital asset in Florida, and its divorced upon divorce can be easily overlooked. The ‘Save Our Homes’ Amendment (SOHA) limits increases in your home’s assessment.

In 2008, the Florida Constitution was amended to allow homeowners to keep a portion of their SOHA differential after their home is sold, and port it to a new homestead. I wrote an article examining the equitable distribution implications of SOHA after divorce. The article, published in the Florida Bar Journal, is available here.

There was a big limitation with the old law if spouses wanted to divide the SOHA benefit unequally. The Department of Revenue, under its Emergency Rules, interpreted the statute to mean a husband and wife who divorcing and both abandoning the homestead, would each take their 50% share of the assessment limitation difference, and the property appraiser could not accept a stipulation designating the difference otherwise.

In light of the Department’s interpretation, dividing the asset in divorce became trickier. An amendment to the statutory language was needed to allow couples the freedom to designate the percentage share of the benefit. That amendment happened this year. Florida Statute §193.155 now provides that a husband and wife who abandon jointly titled homestead property may designate the percentage attributed to each spouse of the differential between market value and assessed value that is portable to a new homestead property.

The parties must be husband and wife at the time that the jointly owned property is abandoned. They must file a form with the property appraiser prior to either person applying for the portable differential, and the designation, once made, is irrevocable. However, once that form is filed, couples will have the freedom to designate the SOHA benefit how they like.

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