In Florida, like in most states, the general rule is that the money or property of a Florida limited liability company (“LLC”) cannot be taken by creditors to pay off the personal debts or liabilities of the LLC’s owners.
Example: Sarah, Eli, and Payton form an Florida LLC to sell scuba diving equipment. It turns out that Eli owes $10,000 to Jack, a former business partner, who sues him in court and obtains a judgment against him. While Jack can attempt to collect on his debt from Eli’s personal assets, he cannot take money or property owned by LLC to satisfy Jack’s personal debts. For example, he cannot get any of the money held in the LLC’s bank account.
However, there are other ways that creditors of an LLC owner might try to collect against the LLC for the owner’s debt. These include:
1) obtaining a charging order requiring that the LLC pay the creditor all the money due from the LLC’s payments to the debtor-owner
2) foreclosing on the debtor-owner’s LLC ownership interest, or
3) getting a court to order the LLC to be dissolved and all its assets sold.
State laws vary widely on what creditors are allowed to do so you need to check the laws of your state. This article covers what actions creditors in Florida are allowed to take against an LLC for an LLC owner’s personal debt.
Charging Order - Exclusive Remedy for Multi-Member LLCs
Florida, like all states, permits personal creditors of an owner of an Florida LLC to obtain a charging order against the debtor-owner’s membership interest. A charging order is an order issued by a court directing an LLC’s manager to pay to the debtor-owner’s personal creditor any distributions of income or profits that would otherwise be distributed to the debtor-member. Like most states, creditors in Florida only obtain the owner-debtor’s “financial rights” with the charging order and cannot participate in the management of the LLC. Thus, the creditor cannot order the LLC to make a distribution subject to its charging order. Very frequently, creditors who obtain charging orders end up with nothing because they don’t have the right to order distributions.
Example: Eli has only $500 in his bank account and no valuable personal property. The only thing of value he owns is his 33% interest in the successful scuba shop. However, Jack, his creditor, cannot just take over his LLC ownership interest or have it sold. All he can do is get a Florida court to issue a charging order. This means that any distributions of money or property the LLC would ordinarily make to Jack must be given to Jack instead until the entire $10,000 debt is paid. However, if there are no distributions there will be no payments.
Florida’s LLC law says that the charging order is the exclusive remedy that personal creditors of Florida LLC members can use to get at a debtor’s LLC ownership interest. Thus, unlike some other states, Florida does not permit an LLC owner’s personal creditors to foreclose on the owner’s LLC ownership interest or get a court to order the LLC dissolved and its assets sold. This makes Florida a very friendly state for people who want to form LLCs to protect assets from personal creditors. However, Florida state law makes an exception for creditors of single member LLC owners.
Special Rule for SMLLCs in Florida
The reason many LLC state laws limit the remedies available for personal creditors of LLC owners to a charging order is to protect the members (owners) of the LLC from personal debts of other LLC members that are unrelated to the LLC and its business. With a charging order, creditors aren't allowed to take over the debtor-member’s LLC interest and join in the management of the LLC or have the LLC dissolved and its assets sold. However, the rationale for limiting creditors' remedies disappears with a single member LLC ("SMLLC") because there are no other LLC members to protect. As a result, some states have made a distinction between the remedies available for creditors of multi-member and single member LLCs.
Florida is one of the states that has amended its laws to provide for different creditor remedies in the case of SMLLCs. Under Florida law, if the charging order remedy proves ineffective, the creditor of a SMLLC can ask the court to order that the SMLLC be sold in a foreclosure sale. Whoever purchases the SMLLC in a sale acquires all the former owner’s rights and becomes the new sole owner of the SMLLC. To get a court to order foreclosure, the creditor must show that the SMLLC debtor-owner will not be able to pay its debt within a reasonable time.
Because of the SMLLC rules in Flordia and uncertainty about SMLLC liability protection in other states, an LLC should have at least two members for better liability protection. The second owner can be a spouse or relative, provided the second member is treated as a legitimate co-owner of the LLC. If the second owner is added merely on paper as a sham, the courts will likely treat the LLC as a single-member LLC. To avoid this, the co-owner must pay fair market value for the interest acquired and otherwise be treated as a "real" LLC member--that is, receive financial statements, participate in decision making, and receive a share of the LLC profits equal to the membership percentage.
Should You Consider Forming Your LLC in Another State?
You do not have to form your LLC in Florida even if it is where you live or do business. You can form an LLC in any state--for example, even though your business is in Florida, you could form an LLC in Wyoming to own and operate it because it has more favorable LLC laws. However, there is no guarantee that the courts of Florida or other states where your LLC does business will apply the laws of the state where you formed your LLC instead of another state's LLC laws. This is a complex legal issue with no definitive answer. Consult an experienced business lawyer if you are considering forming your LLC in a state with more favorable laws.
For more information on LLCs and the limited liability protections they offer, see Limited Liability Protection and LLCs: A 50-State Guide.