Someone Put a Lien on the Family Home During a Divorce: What Now?

Property division in Florida is complex enough without the added complexity of liens. If you’re going through a divorce and a creditor has put a lien on your family home, you may need to take specific steps to address this issue. A real estate lawyer in St. Petersburg may be able to help.

Can a Creditor Put a Lien on Your Property if the Debt Belongs to One Spouse?

Tenancy by entirety (TBE) in Florida prevents a creditor from putting a lien on the family home if the debt belongs to only one spouse. The Florida Bar describes this as a “magical power” that “transforms property ownership” into something more secure. TBE means that each spouse owns the entire property and not just a portion.

Suppose one spouse has a debt for unpaid rent. Maybe they moved out of the family home and into an apartment before failing to pay their rent. If the landlord never gets their unpaid rent, they may want to pursue a lien against the shared marital home that is still going through the property division process. However, this debt does not apply to the other spouse.

In this situation, the landlord would not be able to put a lien on the family home. Since the tenancy by entirety means that the other spouse owns the entire family home, the landlord has no right to put a lien on a property entirely owned by a spouse who is not indebted.

Note that this protection only applies if the spouses own their family home as tenants by entirety. If they have chosen a different type of ownership, such as joint tenancy with right of survivorship (JTWROS) or tenancy in common (TIC), the creditor may put a lien on the property.  Finally, spouses do not enjoy any protection from liens for joint debt. For example, both spouses might owe money due to debt on a joint credit card.

What Happens Next?

If you plan to sell the property and divide the proceeds, the next steps are relatively simple. You will simply use the proceeds of the sale to pay off the lien. If one spouse wants to remain in the family home, the next steps are more complex. You will need to “clear the title” and pay off the lien in order to approve a new mortgage. Alternatively, you could simply leave the lien as is and rely on the Florida homestead exemption for creditor protection. Speak with a real estate lawyer to determine the most appropriate next steps.

Can a Real Estate Lawyer in St. Petersburg Help Me?

Generally speaking, you must resolve a lien on the family home before you can sell it during a divorce. While this shouldn’t be an overly complex process, it does add a few extra steps to your divorce process. While the Florida Constitution prevents forced sales by creditors, you and your ex will need to “clear the title” before you can sell the property. Contact the St. Petersburg real estate lawyers at Drude Tomori Law for more answers. We also have offices in Lakewood Ranch, Bradenton, and Sarasota.

Source: 

floridabar.org/the-florida-bar-journal/turning-straw-into-gold-a-comprehensive-guide-to-tenants-by-the-entirety-in-florida/