LLC Protection for Members' Personal Debt in Virginia
Last updated: October 26, 2016
This article covers what actions judgment creditors can take against a limited liability company (LLC) for a member’s personal debt under Virginia law. State laws on creditor rights against an LLC vary, with some more debtor-friendly states (like Virginia) providing more protection from creditors for an LLC and its owners than other states.
General Rule: LLC is Not Liable for Members’ Personal Debts
The general rule in all states, including Virginia, is that the money or property of an LLC cannot be taken by creditors to pay off the personal debts or liabilities of the LLC’s owners. Similar to corporations, the money or property held in an LLC belongs to the LLC, not the member/owners individually, and may not be applied by creditors to pay a member’s individual debts. This protection from personal creditors is one of the key reasons people form LLCs. In addition to providing LLC members with personal liability protection from the LLC’s business debts, the LLC also protects the business and its owners from exposure to any debts or personal liability the other LLC members/owners may incur that are unrelated to the LLC’s business.
Example: John, Meghan, and Louis form a Virginia LLC to operate their website design business. John, a big spender, owes $38,000 on his personal credit cards. When he doesn’t pay, the accounts are turned over to a collection agency which obtains a $38,000 court judgment against him. While the collection agency can attempt to collect on the debt from John’s personal assets, it cannot take money or property owned by the LLC. For example, it cannot get any of the money held in the LLC’s bank account.
Virginia LLCs and Charging Orders – Exclusive Remedy
In Virginia, a charging order is the only legal procedure that personal creditors of a Virginia LLC member can use to get at a member/debtor’s LLC ownership interest. A charging order directs the LLC to pay to the creditor any distributions of income or profit that would otherwise be distributed to the LLC member/debtor. Like most states, creditors with a charging order in Virginia only obtain the owner-debtor’s financial rights and cannot participate in the LLC’s management.
To obtain a charging order, the creditor must have a judgment against the LLC member personally. After the judgment is entered, the creditor can apply to the court for a charging order. Since a creditor with a charging order cannot participate in the LLC’s management, it cannot order the LLC to make a distribution or that the LLC be sold to pay off the debt. Frequently, creditors who obtain charging orders against LLCs end up with nothing because they can’t order any distributions and the LLC can choose not to make any.
Example: The collection agency obtains a charging order from a Virginia court ordering the website design LLC to pay to it any distributions of money or property the LLC would ordinarily make to John until the entire $38,000 judgment is paid. However, if there are no distributions, there will be no payments.
Although a charging order is often a weak remedy for a creditor, it is not necessarily toothless. The existence of a charging order can make it difficult or impossible for an LLC owner/debtor or the other owners (if any) to take money out of an LLC business without having to pay the judgment creditor first. To avoid this problem, the LLC owner/debtor may seek to pay off or settle the debt.
Foreclosure and Dissolution Not Allowed
Virginia’s LLC law says that the charging order is the exclusive legal procedure that personal creditors of Virginia LLC members can use to get at their LLC ownership interest. Thus, unlike some other states, Virginia 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 Virginia a particularly friendly state for people who want to form LLCs to protect assets from personal creditors.
Virginia SMLLCs and Charging Order Protection
The reason personal creditors of individual LLC owners are limited to a charging order is to protect the other members (owners) of the LLC. It prevents personal creditors of an LLC member from being able to take over a debtor-member’s LLC interest and join in the management of the LLC, or have the LLC dissolved and its assets sold without the other members’ consent. This concern about protecting LLC members from another member's personal creditors disappears when the LLC has only one member (owner). As a result, the LLC laws and court decisions in some states make a distinction between multi-member and single-member LLCs ("SMLLCs") and don't limit personal creditors of owners of SMLLCs to the charging order remedy.
In 2012, Virginia considered but did not enact legislation that would have broadened the rights of personal creditors of a SMLLC owner to allow them to execute directly against the SMLLC assets. The LLC statute in effect does not distinguish between multi-member and single-member LLCs and the remedies available to creditors. Thus, it appears that creditors of Virginia SMLLCs are limited to the charging order remedy described above. However, even when the LLC law states that charging orders are the exclusive remedy, courts in some states have applied a different rule for SMLLCs, particularly in cases where the SMLLC owner has filed for personal bankruptcy. It's possible that a court in Virginia would do the same; this is an unsettled and evolving area of law.
If you are really concerned about protecting the assets in your SMLLC against personal creditors, you might want to consider adding another member to your Virginia LLC. This will give you more protection in the event you file for bankruptcy, or if you or your LLC become subject to the LLC laws of a state that provide less protection to SMLLCs. If you decide to do this, the second member must be 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 an SMLLC. 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 owned.
Will Virginia Law Apply?
It's important to keep in mind that even if your LLC is formed in Virginia, the laws of another state might apply in a creditor action against the LLC for a member/owner’s personal liability. This could occur, for example, if your LLC owns property or does business outside of Virginia, or a member/owner lives outside the state.
For more information on LLCs and the limited liability protections they offer, see Limited Liability Protection and LLCs: A 50-State Guide.