Can a Lien Be Placed on My House for a Spouses Debt?
Understand when your property can be subject to a lien for a spouse's debt. Liability often depends on intersecting legal standards and how your home is owned.
A property lien is a legal claim a creditor places on a property, like a home, for an unpaid debt. This claim gives the creditor a security interest in the property, which can prevent the owner from selling or refinancing it until the debt is settled. Whether a home can be subject to a lien for a spouse’s separate debt depends on state laws, how the property is owned, and the nature of the debt.
The Impact of State Law on Spousal Debt
The legal framework of your state is a primary factor in determining liability for a spouse’s debts. States follow one of two systems for classifying marital assets and debts: community property or common law.
In community property states, the law presumes that most assets and debts acquired by either spouse during the marriage belong equally to both. The nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these jurisdictions, a debt taken on by one spouse during the marriage is considered a community debt, making community property, including the primary residence, potentially vulnerable to a lien. Several other states also offer an “opt-in” community property system, where couples can choose to designate their assets as community property.
The majority of states operate under a common law system. In these states, each spouse is treated as a separate individual financially. An asset or debt belongs to the spouse whose name is on the title or who incurred the obligation. This separation provides a layer of protection, but it is not absolute and is subject to important exceptions based on how property is titled and the type of debt.
How Property Ownership Affects Liability
Beyond the state legal system, the specific way a property’s title is held is a direct determinant of its vulnerability to a spouse’s creditors.
If a home is titled solely in the name of the non-debtor spouse in a common law state, it is generally shielded from the other spouse’s individual creditors. Another form of ownership is “tenants in common,” where each spouse owns a distinct, separate share of the property. A creditor can place a lien on the debtor spouse’s specific share, though not on the share belonging to the non-debtor spouse. “Joint tenancy with right of survivorship” is similar, allowing a creditor to lien one spouse’s interest.
“Tenancy by the entirety” (TBE) is available to married couples in 25 states and the District of Columbia. This ownership structure treats the married couple as a single legal entity, meaning both spouses own 100% of the property together, not as separate 50/50 shares. Consequently, a creditor of only one spouse generally cannot place a lien on property held in TBE.
The protection offered by TBE is not absolute. If the couple shares the debt, such as by co-signing a loan, the creditor can pursue the property. If the non-debtor spouse dies, the surviving spouse becomes the sole owner, and the TBE protection dissolves, potentially exposing the property to that spouse’s creditors. A divorce also terminates the TBE, typically converting the ownership to tenants in common and removing the creditor shield.
Special Considerations for Certain Types of Debt
Certain types of debt are governed by unique rules that can override general state property laws and titling protections. Federal tax obligations, in particular, have far-reaching enforcement capabilities. The Internal Revenue Service (IRS) has broad power to collect unpaid taxes, which can supersede state-level protections like tenancy by the entirety.
The U.S. Supreme Court case, United States v. Craft, established that a federal tax lien can attach to a delinquent taxpayer’s interest in property held as tenancy by the entirety. This allows the IRS to place a lien on the property for one spouse’s tax debt. If the non-liable spouse dies first, the tax lien then attaches to the entire property.
Another exception is the “doctrine of necessaries.” This legal principle, recognized in many states, holds that a spouse can be held liable for the other’s debts if those debts were incurred for essential goods and services that benefit the family. These include expenses for food, shelter, clothing, and necessary medical care.
How to Determine if a Lien Exists on Your Property
Discovering whether a lien has been placed on your property is a matter of checking public records. These records are maintained by a county-level government office, which may be called the recorder’s office, county clerk, or registrar of deeds.
Many counties now offer online portals where you can search property records by name or address. You can search for documents recorded under your name and your spouse’s name to see if any liens appear. If online access is limited or you prefer to search in person, you can visit the office to review the records.
If you find a document that appears to be a lien, the next step is to contact the creditor who filed it for more information. The county recorder’s office cannot remove a lien; only the creditor who placed it can file a “release of lien” document once the underlying debt is satisfied. If a lien is confirmed, options involve paying the debt, negotiating a settlement with the creditor, or seeking legal counsel to understand your rights and potential challenges to the lien’s validity.