by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
MARITAL PROPERTY; TENANCY BY ENTIRETY; CREDITORS' RIGHTS: Arkansas court rules that a judgment creditor can levy upon and sell at a public sale a debtor's right of survivorship and entitlement to one-half of the rents and profits from property owned as tenancy by entirety with non-debtor spouse. Morris v. Solesbee, 892 S.W.2d 281 (Ark. 1995). The judgment creditor, however, cannot partition the property, and the judgment creditor's right to levy upon and sell the property are subject to the non-debtor spouse's continued right of possession, right of survivorship and entitlement to one-half of the rents and profits.
Comment: The ruling as to the current rents is interesting. What about costs of maintenance, taxes, insurance and any mortgages on the community property? Would the creditor's interest in the cash flow of the debtor spouse preempt the community's claim upon these monies?
Comment: Lawyers who think they understand tenancy by the entirety because they understand the treatment in their own state may be in for a rude awakening if they rely upon that understanding in another state that recognizes the concepts. This is an area where treatment varies widely among jurisdictions, particularly on the question of creditor's rights.
The Arkansas approach is not a unique one, but probably the most common concept is that a tenancy by the entireties is an interest held only by the marital community, and neither member of that community possesses any interest (including a future interest) that can be transferred or reached by a creditor.
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