Is my real estate vulnerable to creditors when I divorce?
Most married couples in Virginia hold title to real estate as tenants by the entirety with the common-law right of survivorship. This type of tenancy is based on the old common-law notion that a husband and wife were a single legal person. Both parties own the entire property together such that when one of them dies, the property does not even pass from one to the other, but instead the surviving spouse remains the owner of the entire property. In Virginia, a tenancy by the entirety is protected from the creditors of either husband or wife alone, except for super-creditors like the Internal Revenue Service (IRS). Thus ordinary claims of either spouse will not become a lien on the title while it remains a tenancy by the entirety. As discussed in the answer to the question “Am I responsible for my spouse’s debts?” a judgment lien for either spouse’s obligation to pay the other spouse’s necessaries will not attach to the couple’s real property held as tenants by the entireties with the common-law right of survivorship.
In Virginia, upon entry of a decree of divorce from the bond of matrimony, any real estate held by husband and wife as tenants by the entirety converts to a tenancy in common. A final divorce extinguishes the right of survivorship, one of the essential elements of the tenancy. Under the new tenancy, the liens of either husband or wife can now attach to that party’s interest in the real property.
While the property is held as tenants by the entirety, both husband and wife must join in a deed to convey good title to real estate. Under Virginia law, when a party conveys property that the party subsequently acquires, the deed will affect the title as if the party owned the property at the time the conveyance was made. Thus, a spouse may grant a deed of trust on real property that would be ineffective while the parties are married and the real property is held by the parties as tenants by the entirety, but the transfer may become effective upon the entry of the final decree of divorce as a lien on that spouse’s interest in the real estate (without prejudice to the rights of third parties Hausman v. Hausman, 233 Va. 1, 353 S.E.2d 710 (Va., 1987).
You should consult with your bankruptcy, divorce or real estate attorney, to discuss the applicability of the foregoing concepts to the facts of your particular situation.