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Ask Elizabeth Prentice Your Own Question

Elizabeth Prentice
Elizabeth Prentice, Attorney
Category: Bankruptcy Law
Satisfied Customers: 173
Experience:  Managing Attorney for one of the largest consumer bankruptcy firms in America.
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This is a new question, related to our prior exchange from

Customer Question

This is a new question, related to our prior exchange from 10/12/2013, so please read that exchange before answering me. As mentioned before, our plan is to divorce in a few months and in the settlement I QCD the condo back to her. The new question is if instead of QCD property to her in full, I only change my % of ownership to 1% (market value $2000) or to 1/2% ($1000), will this prevent creditors from placing liens against that property, which is her homestead (single mother with child), when I file for BK CH7?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Elizabeth Prentice replied 1 year ago.
I am a bankruptcy attorney and I would be happy to assist you. Unfortunately that solution will not prevent the creditors from placing liens against the property. Florida is a community property state. Therefore, your best solution would be to file for Chapter 7 together, which will save you extensive fees and time. Then all debts would be discharged preventing any liens against the property and you could proceed with the divorce proceedings and transfer the property without fear of liens. Also note that if a lien attaches to the property before you or she file for bankruptcy, your attorney can still strip the lien off the property; however, you may both need to be in the bankruptcy case together before you file. So you should consult with your bankruptcy attorney who should perform a title/recorder's search before you file in order to assess all options.

I hope my answer has assisted you and if you have further questions, please feel free to ask for me by name directly.
Customer: replied 1 year ago.

Sorry, but for specific reasons BK is not an option for her. From my prior exchange (please read it) I was told that if we divorce before BK (let's say a year before, because divorce is at the table now and BK I know will not happen until probably 1 year or more) and I QCD property back to her, her property will be safe from creditors if such arrangement is part of the divorce agreement.

1-Please confirm this opinion

2- In light of this clarification, will I be able to achieve same results if I keep a small % of interest in the property? (the reason of me keeping the interest is not economical but parental. Since my son lives there, I want to be able to have a say if she sells property in the future)

Expert:  Elizabeth Prentice replied 1 year ago.
1) If you divorce and the order of divorce assigns your wife the property and there are no liens on it already, then no liens may be placed on it after the divorce as long as the order for divorce also states that the debt/creditor which you fear may attach a lien on the property is specifically stated to be your debt alone. if the divorce order does not state that this creditor/debt is yours, then the creditor may still attach a lien to the property, as debts are considered 50/50 in a community property state.
2) If you maintain a small interest in the property, and the debt/creditor is assigned to you in the divorce, then the creditor may assert a lien on the property, since you have an interest in it, no matter how small.

I hope my answer has assisted you and you will leave me a positive rating!
Customer: replied 1 year ago.

Thank you, but I just googled that Florida is not a community property. Does anything change in your commentary?

Expert:  Elizabeth Prentice replied 1 year ago.
I'm sorry I was misinformed. Thank you for the additional information. With regards to the 1st part, please disregard it. However, with the second answer, no. The divorce decree will remain binding over all other issues. If you assign the property to your spouse and her name is not on the debt, then creditors may not put liens on the property. You may still want to state that the debt is allocated to you alone in your divorce decree anyways, since it doesn't hurt anything and is an extra precaution. But if you do maintain an interest in the property, no matter how small, then the creditors will be permitted to attach the liens.

I hope my answer has assisted you and that you will leave me a positive rating!

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