In short: In Sumlin v. Sumlin (5th DCA, Jan. 10, 2020), a divorce judgment secured the husband’s equalizing payment with the home he lived in. The Fifth DCA did not decide the homestead question. It reversed on tax and 401(k) errors and told the trial court, if it again secures the payment with that property, to consider its homestead status.
The Facts
The former husband appealed an Orange County dissolution judgment after his answer and counterpetition were struck.
The trial court accounted for taxes on the wife’s pension and 401(k) but not on the husband’s Merrill Lynch retirement account.
In 2015 the wife withdrew about $134,000 from her 401(k) and spent it on a home down payment, penalties and taxes. The marital share, net of tax, was about $57,500, but the worksheet charged her only about $28,700.
The judgment secured the husband’s equalizing payment with property distributed to him that had been his primary residence during the case.
The Decision
The Fifth District Court of Appeal affirmed in part, reversed in part and remanded (Case No. 5D18-2701, Jan. 10, 2020; opinion by Judge Orfinger).
The order striking his pleadings and the dissolution itself were affirmed.
Ignoring the tax consequences of the husband’s retirement account, while counting the wife’s, was error. So was charging the wife only half the marital share she spent on herself. Equitable distribution must be recalculated.
The court did not reach the husband’s challenge to securing the payment with his home. In a footnote it told the trial court to consider the property’s homestead status, if any, if it again considers a lien on it.
Judge Eisnaugle concurred in part and dissented in part, viewing the 401(k) issue as unpreserved.
The Law
Article X, § 4 protects homestead from forced sale and most liens, but courts have recognized limited exceptions in dissolution cases. Whether an equalizing-payment lien on homestead is allowed depends on the facts, which is why the Fifth DCA flagged it for remand.
Equitable distribution under § 61.075 must treat comparable assets consistently, including tax consequences.
Lessons
- Do not assume a court decided an issue because a video or summary says so. Here the homestead question was expressly left open.
- Taxes on retirement accounts must be handled consistently for both spouses.
- Spending marital money on yourself during the case can be charged entirely to you.
- If a judgment puts a lien on a home, raise homestead protection clearly and preserve it.
Source: Opinion, Sumlin v. Sumlin, No. 5D18-2701 (Fla. 5th DCA Jan. 10, 2020)
Watch the Oral Argument
This is the recording of the oral argument. Its title says the court forced a mortgage; the opinion says only that the payment was secured by the property, and the homestead issue was not decided. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Divorce Court Forced Him to Mortgage His Homestead: Can a Judge Do That? | Sumlin v. Sumlin, 5D18-2701
Go Deeper
- Purge Paid, But Homestead Still Ordered Sold for Child Support? (Pacin v. Granja)
- Divorce Deal vs. Survivorship: Who Gets Joint Property When an Ex Dies? (Ebanks v. Ebanks)
- Testamentary Capacity in Florida: When Dementia Makes a Will, Deed, or POA Invalid
Frequently Asked Questions
Can a Florida divorce court put a lien on a homestead?
Sometimes, in limited circumstances. Sumlin did not decide the question and told the trial court to consider homestead status on remand.
Do tax consequences of retirement accounts matter in equitable distribution?
Yes. Sumlin held the court must treat both spouses’ accounts consistently.
What if a spouse spends marital money during the divorce?
The court can charge the full marital share spent for personal use against that spouse’s share.
What is an equalizing payment?
A payment from one spouse to the other to balance an unequal division of assets.
Talk to a Florida homestead and probate lawyer
Weidner Law, P.A. handles Florida homestead, probate and real estate disputes from St. Petersburg. If you need a probate real estate lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
