15.2.6 Special Rules for Health Care, Family Support, Criminal Law Forfeitures, and Tax Debts

115 See § 13.4.1, supra.

116 See, e.g., In re Elmasri, 374 Fed. Appx. 75 (2d Cir. 2010) (N.Y. law) (judicial liens for child support take priority over homestead exemption); Hamel v. Hamel, 2009 WL 888648 (Ariz. Ct. App. Apr. 2, 2009) (husband’s share of homestead proceeds could be set off against arrears of family support; ex-spouse is not the kind of creditor the homestead protects against); Wallace v. Wallace, 922 So. 2d 1008 (Fla. Dist. Ct. App. 2006) (lien may be placed on homestead to secure ex-wife’s “special equity” granted to compensate for funds she spent on renovation); Dep’t of Revenue ex rel. Greene v. Bush, 838 So. 2d 653 (Fla. Dist. Ct. App. 2003) (homestead exemption does not protect against claim for child support); Hieke v. Hieke, 782 So. 2d 443 (Fla. Dist. Ct. App. 2001) (homestead exemption did not protect against ex-wife’s equitable lien on home, because it was an ownership interest); Brose v. Brose, 750 So. 2d 717 (Fla. Dist. Ct. App. 2000) (homestead could be sold for alimony obligation, when it was purchased with proceeds of financial manipulations intended to put assets beyond reach of ex-wife); Kautzman v. Kautzman, 618 N.W.2d 500 (N.D. 2000) (homestead could be sold to foreclose equitable lien awarded to ex-wife in response to husband’s wrongful financial manipulations); In re Marriage of Maresh, 78 P.3d 157 (Or. Ct. App. 2003) (homestead exemption did not bar sheriff’s sale to foreclose lien imposed by divorce decree); Pearson v. Pearson, 169 Vt. 28, 726 A.2d 71 (Vt. 1999) (homestead statute, which is intended to protect family home against creditors, does not prevent family court encumbrance to give effect to property division in divorce judgment); In re Marriage of Foley, 930 P.2d 929 (Wash. Ct. App. 1997) (homestead exemption did not apply when court ordered sale or refinancing of former marital home, to enable husband, who received home, to pay wife her share of community property). See also Calcagno v. Ainbinder, 2016 WL 3264116 (Ariz. Ct. App. June 14, 2016) (lien on sales proceeds of marital home, imposed by family court because husband breached property settlement agreement, was consensual lien, an exception to homestead exemption). But see Cannon v. Cannon, 254 B.R. 773 (S.D. Fla. 2000) (lien created by divorce judgment cannot attach to homestead property; homestead exemption arises from state constitution, and support obligation not listed among exceptions); Smith v. Smith, 761 So. 2d 370 (Fla. Dist. Ct. App. 2000) (no forced sale of homestead when homestead not purchased with proceeds of fraud nor as part of financial juggling to avoid support obligation, even though wife’s equitable lien was awarded to compensate for physical injuries inflicted by abusive husband); Solomon v. Lesay, 369 S.W.3d 540 (Tex. App. 2012) (lien for child support not an exception to Texas homestead exemption). But cf. In re Phillips, 520 B.R. 853 (Bankr. D.N.M. 2014) (allowing lien avoidance; debt to former spouse arising from improperly claiming dependency exemptions for both children, and court-ordered sanctions for violating agreement regarding dependency exemptions, were not domestic support obligations); Anderson v. Veblen Premium Pork, Inc., 2000 WL 1182841 (Minn. App. Aug. 22, 2000) (unpublished) (creditor could not foreclose on husband’s homestead based on ex-wife’s assignment of lien created by divorce court to secure husband’s obligations to her, as this would be attempt by creditor to evade the exemption); In re Children of Knight v. Lincoln, 317 P.3d 210 (Okla. Civ. App. 2013) (although Oklahoma homestead generally protects sales proceeds used to purchase new homestead, proceeds of voluntary sale are income that should be counted in setting amount of child support); Barras v. Barras, 396 S.W.3d 154 (Tex. App. 2013) (lien may not be imposed on homestead to ensure just property division at divorce, but lien here, for equalization payment to wife for her share of home awarded to husband, was purchase money lien, an exception to Texas homestead exemption). See generally Jane Massey Draper, Annotation, Enforcement of a Claim for Alimony or Support, or for Attorney’s Fees or Costs in Connection Therewith, Against Exemptions, 52 A.L.R.5th 221 (1997).

117 Harleaux v. Harleaux, 154 S.W.3d 925 (Tex. App. 2005) (court may not order attorney fees, arising from dispute over sale of marital home, paid from proceeds of homestead); In re Marriage of Banks, 887 S.W.2d 160 (Tex. App. 1994) (ordering payment of unsecured creditors—including attorney fees—from proceeds of homestead would “circumvent the constitutional and statutory provisions” that protect the homestead from general creditors). Cf. Dyer v. Beverly & Tittle, P.A., 777 So. 2d 1055 (Fla. Dist. Ct. App. 2001) (ex-wife’s attorney fees were connected to support obligation so as to create equitable lien on homestead, but homestead exemption barred forced sale when no showing of fraudulent or egregious conduct by husband). But see In re Bingham, 344 B.R. 648 (Bankr. W.D. Okla. 2006) (attorney’s lien may attach to otherwise exempt property, including homestead, divided up in divorce); In re Jarski, 301 B.R. 342 (Bankr. D. Ariz. 2003) (attorney fees in child support matters were child support; lien could attach to homestead); Sell v. Sell, 949 So. 2d 1108 (Fla. Dist. Ct. App. 2007) (ex-husband’s share of homestead proceeds could be reached for wife’s attorney fees; husband’s egregious evasion of court orders resulted in jailing for contempt).

118 In re Smith, 176 B.R. 221 (Bankr. N.D. Ala. 1995) (homestead exemption does not apply in state drug forfeiture proceeding); Lot 39, Sec. C, N. Hills Subdivision v. State, 85 S.W.3d 429 (Tex. App. 2002) (Texas constitutional homestead exemption does not protect against criminal law forfeiture); Tellevik v. Real Prop. in Pierce Cty., 921 P.2d 1088 (Wash. Ct. App. 1996) (Washington’s homestead exemption does not protect against drug forfeiture). Cf. Nielsen v. 2003 Honda Accord, 845 N.W.2d 754 (Minn. 2013) (allowing motor vehicle forfeiture pursuant to DWI law, but distinguishing cases that forbid forfeiture of homestead because of the “unique importance” of the homestead right, and the special protections accorded to it). But see Torgelson v. Real Prop. Known As 17138 880th Ave., 749 N.W.2d 24 (Minn. 2008) (constitutional homestead exemption bars forfeiture for state offenses; noting that Florida, Iowa, Kansas, and Oklahoma homestead exemptions also bar state law drug forfeitures); State v. One 1965 Red Chevrolet Pickup, 37 P.3d 815 (Okla. 2001) (constitutional homestead exemption, but not personal property exemption, applies to state criminal forfeiture). But cf. Grantham v. Johnson, 134 So. 3d 164 (La. Ct. App. 2014) (statute denying homestead for judgment arising from felony conviction is penal and strictly construed; allowing homestead for defendant who was found civilly liable but not criminally convicted of attempted murder for which co-defendant was convicted).

119 People v. One Residence, 621 N.E.2d 1026 (Ill. App. Ct. 1993) (homestead exemption applied to “involuntary taking of property for any purpose” including forfeiture pursuant to state controlled substances statute).

120 735 Ill. Comp. Stat. § 5/12-903.5.

121 Ergos v. State, 670 So. 2d 1079 (Fla. Dist. Ct. App. 1996). See also Matthieu v. City of Lauderdale Lakes, 961 So. 2d 363 (Fla. Dist. Ct. App. 2007) (liens for municipal code violations may not be foreclosed against homestead property); Fong v. Town of Bay Harbor Islands, 864 So. 2d 76 (Fla. Dist. Ct. App. 2003) (no lien against homestead for continuing code violations).

122 United States v. Hyde, 497 F.3d 103 (1st Cir. 2007); United States v. Fleet, 498 F.3d 1225 (11th Cir. 2005); United States v. Jaffe, 417 F.3d 259 (2d Cir. 2005) (Florida homestead preempted by federal law; federal court restitution order that may require sale of exempt homestead is valid); United States v. One Parcel of Real Prop. Known as 16614 Cayuga Rd., 2003 WL 21437207 (10th Cir. June 23, 2003) (Oklahoma homestead exemption does not bar federal forfeiture of homestead used as marijuana farm); United States v. Wagoner Real Estate, 278 F.3d 1091 (10th Cir. 2002) (federal forfeiture law preempts Oklahoma homestead exemption); United States v. Lampien, 89 F.3d 1316 (7th Cir. 1996) (Wisconsin homestead exemption does not protect against federal government lien for restitution, and it would be preempted if it did); S.E.C. v. Solow, 682 F. Supp. 2d 1312 (S.D. Fla. 2010) (federal court ordering disgorgement—here, of profits from securities fraud—may reach property covered by state homestead and tenancy-by-entireties exemptions), aff’d, 396 Fed. Appx. 635 (11th Cir. 2010); In re Hutchins, 306 B.R. 82 (Bankr. D. Vt. 2004) (lien for husband’s federal criminal fines encumbered his interest in real property even though it would have been protected by state entireties doctrine). But cf. United States v. Lee, 232 F.3d 556 (7th Cir. 2000) (when property was neither used in the commission of a crime nor purchased with proceeds thereof, tenancy by entireties protects innocent spouse against forfeiture of even guilty spouse’s share). See generally Chs. 10 (collection of government debts), 11 (criminal justice debt), supra.

123 United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002); United States v. Rogers, 461 U.S. 677, 103 S. Ct. 2132, 76 L. Ed. 2d 236 (1983); United States v. Offiler, 336 Fed. Appx. 907 (11th Cir. 2009) (Florida homestead exemption will not protect property against foreclosure of federal tax lien); United States v. Barczyk, 697 F. Supp. 2d 789 (E.D. Mich. Mar. 24, 2010) (U.S. may foreclose on and sell tenancy by entireties homestead property for tax debt of one spouse; non-debtor spouse is entitled to 50% of proceeds), aff’d, 434 Fed. Appx. 488 (6th Cir. 2011); United States v. Kimmel, 2010 WL 1240579 (D. Colo. Mar. 22, 2010) (authorizing sale for husband’s debt; Colorado homestead exemption does not apply); United States v. Boscaljon, 2010 WL 1053688 (D.S.D. Mar. 22, 2010) (homestead does not protect against seizure for tax debt of husband, but court has discretion to delay foreclosure until innocent seventy-four-year-old wife can find other housing); In re Szwyd, 408 B.R. 547 (D. Mass. 2009) (IRS can reach homestead property, but other creditors cannot; equities favor ordering IRS to take homestead and leave non-exempt property for other creditors when tax debt is large, non-exempt property is small, and debtor’s conduct was reprehensible). See generally Ch. 10, supra (collection of government debts).

124 RN & DB, L.L.C. v. Stewart, 362 P.3d 61 (Mont. 2015) (although Montana homestead statute does not mention exception for tax debts, homestead exemption does not apply to tax sales).