No, Florida is not a community property state. In a community property state, any assets acquired by either spouse during the marriage is considered to be marital property and therefore owned by both spouses. In some community property states, even income earned from pre-marital separate property is still considered community property. Instead, Florida is an…
Florida has enacted a statute specifically dealing with single member limited liability companies. The statute authorizes single member LLCs. The statute includes creditor remedies to collect a judgment from a debtor’s membership interest in the debtor’s single member LLC. Generally, a judgment creditor’s sole remedy against multi-member LLCs is limited to a charging order. The…
I have been getting a lot of questions about what the minimum percent a second member needs to have in order for an LLC to qualify as a multi-member LLC. The purpose of forming a multi-member LLC, rather than a single-member or solely-owned LLC, is because a creditor’s exclusive remedy with respect to the LLC…
Some states, not Florida, have statutes that encourage asset protection trusts. These states’ statutes provide that if a debtor establishes an irrevocable trusts for their own benefit the assets that the debtor conveys to his trust are protected from his creditors. The trustmaker must reside or have significant assets in the state where the trust…
Florida debtors often form LLCs in other states because they believe the laws of the foreign state provide better asset protection in the manner of protection of single-member LLCs or more privacy for multi-member LLC ownership. Owning a membership interest in a foreign LLC can have unintended consequences as Florida debtors recently found out in…
From time to time we receive inquiries about using limit liability companies to avoid probate of business interests and real estate. Some people believe that they can write terms and conditions in an LLC operating agreement that control the transfer of a member’s LLC interest after the member’s death. They believe that the deceased member’s…
Florida Statute 605.0503 states that a charging lien is a judgment creditor’s sole remedy against a debtor’s membership interest in a limited liability company. The statute does not explain what happens if two judgment creditors apply for a charging lien against the same LLC interest. It is not clear whether the second charging lien has…
Some of my clients ask me whether there is an advantage to create an LLC Delaware. There may be benefits to a Delaware LLC, but the advantages are largely misunderstood. Delaware law specifically protects single member LLCs from collection remedies other than charging liens. Many people think that if they form a single member LLC…
At least two members in a Florida LLC are required to limit creditor collection to a charging lien. Many clients who already have a single member LLC that they set up for their own business or investment have difficulty adding another member. For example, they may be unmarried or if married, may not want their…
A writ of garnishment is a collection tool that gives the judgment creditor the right to collect a debt owed to the debtor. In a Florida appellate case decided earlier this year a judgment creditor convinced a trial court to issue a writ of garnishment against a limited liability company to garnish distributions that the…
