When people owe you money, you can garnish their checks, throw them in jail until they pay or put a lien on their property.
A lien is “a legal right or interest that a creditor has in another’s property, lasting usually until a debt or duty that is secures is satisfied” Black’s Law Dictionary (10th ed. 2014)
A lien against real estate is the right to foreclose on that real estate as though you owned a mortgage against the real estate.
“The lien may be foreclosed by an action brought in the name of the judgment creditor or its assignee of record…in the same manner as a mortgage of real property” 735 ILCS 5/12-101
Of course, very few lienholders actually foreclose against a property. But, who would buy a property from someone if there was a foreclosable lien recorded against that property? Therefore, liens almost always get paid upon the sale of the real estate.
Waiting for someone to sell their real estate in order to get the money owed to you from a divorce requires a lot of patience…but it is better than nothing. This is why other means of enforcing divorce judgments, such as garnishments and body attachments are more common.
How Do You Create A Lien Against Real Estate After An Illinois Divorce?
A lien can only be created after a divorce is finalized because a final judgment is necessary to establish that the money is owed.
“A valid judgment, in order to create a lien, must possess two qualifications: (1) it must be final, valid, and for a definite amount of money; and (2) it must be such a judgment that execution may issue thereon…Without a judgment specifically evidencing a monetary obligation, there is no judgment for purposes of the judgment lien statute.” Dunn v. Thompson, 529 NE 2d 297 – Ill: Appellate Court, 4th Dist. 1988
Except for child support and maintenance (formerly known as alimony) liens, your judgment should specify that you have a right to a lien in order to enforce that lien against the property.
“A judgment ordering the payment of money does not automatically create a lien. Such an order does not become a lien unless made so by statute or unless the decree itself recites that it shall become a lien thereon. As previously established, the plaintiff failed to comply with the statutory requisites to create a judgment lien. The dissolution order made no reference to the creation of a judgment lien. Where there is no specific language in the judgment creating rights to a lien, it may not be implied.” Dunn v. Thompson, 529 NE 2d 297 – Ill: Appellate Court, 4th Dist. 1988 (citations omitted)
Child support and Maintenance orders don’t need the specific lien language. When the money is owed “a lien arises by operation of law.”
“Any new or existing maintenance order including any unallocated maintenance and child support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder. Each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order, except no judgment shall arise as to any installment coming due after the termination of maintenance as provided by Section 510 of the Illinois Marriage and Dissolution of Marriage Act or the provisions of any order for maintenance. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.” 750 ILCS 5/504(b-7)
“Any new or existing support order entered by the court under this Section shall be deemed to be a series of judgments against the person obligated to pay support thereunder, each such judgment to be in the amount of each payment or installment of support and each such judgment to be deemed entered as of the date the corresponding payment or installment becomes due under the terms of the support order. Each such judgment shall have the full force, effect and attributes of any other judgment of this State, including the ability to be enforced. Notwithstanding any other State or local law to the contrary, a lien arises by operation of law against the real and personal property of the obligor for each installment of overdue support owed by the obligor.” 750 ILCS 5/505(d)
Support liens are only good for the period of time up to when the lien was filed. Even though, there will almost certainly be additional monies owed after filing.
“Any lien hereunder arising out of an order for support shall be a lien only as to and from the time that an installment or payment is due under the terms of the order. Further, the order for support shall not be a lien on real estate to the extent of payments made as evidenced by the records of the Clerk of the Circuit Court or State agency receiving payments pursuant to the order.” 735 ILCS 5/12-101
Who Can File A Lien On Real Estate After An Illinois Divorce
Any party to the divorce (usually just the people getting divorced) can file a lien if they have a money judgment against the other party which is due immediately.
Divorce attorneys can also file a lien against either party’s real estate if they are awarded fees by the court.
“A contribution award (payable to either the petitioning party or the party’s counsel, or jointly, as the court determines) may be in the form of either a set dollar amount or a percentage of fees and costs.” 750 ILCS 5/503(j)(5)
“The court may order that the award of attorney’s fees and costs (including an interim or contribution award) shall be paid directly to the attorney, who may enforce the order in his or her name, or that it shall be paid to the appropriate party. Judgment may be entered and enforcement had accordingly.” 750 ILCS 5/508(a)
How To Put A Lien On Real Estate After An Illinois Divorce
Once you have your lien-worthy judgment in hand, you can register the lien with the recorder of deeds of the county wherein the real estate is located.
“[A] judgment is a lien on the real estate of the person against whom it is entered in any county in this State, including the county in which it is entered, only from the time a transcript, certified copy or memorandum of the judgment is filed in the office of the recorder in the county in which the real estate is located.” 735 ILCS 5/12-101
“[A] judgment becomes a lien on real estate when evidence of the judgment is recorded in the county in which the real estate is located” IN RE MARRIAGE OF CAMPBELL, 88 NE 3d 175 – Ill: Appellate Court, 2nd Dist. 2017
The notice of filing the memorandum of judgment (which requires a judge’s signature) should be sufficient notice of the lien (other types of liens have specific notice and perfection rules).
Two items get filed. A memorandum of judgment and the actual judgment. The memorandum of judgment is a summary of the money owed so the recorder of deeds or whomever has an interest in the property doesn’t need to scroll through the judgment to determine what, exactly, is owed.
“The term “memorandum” as used in this Section means a memorandum or copy of the judgment signed by a judge or a copy attested by the clerk of the court entering it and showing the court in which entered, date, amount, number of the case in which it was entered, name of the party in whose favor and name and last known address of the party against whom entered. If the address of the party against whom the judgment was entered is not known, the memorandum or copy of judgment shall so state.” 735 ILCS 5/12-101
A sample memorandum of judgment is below.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT – DOMESTIC RELATIONS DIVISION
IN RE: THE MARRIAGE OF:
FRED FLINTSTONE, Petitioner
WILMA FLINTSTONE, Respondent
MEMORANDUM OF JUDGMENT
On July 29, 2021, judgment was entered in this court in favor of RUSSELL KNIGHT, and against Fred Flintstone and Wilma Flintstone, jointly and severally, whose known properties are 123 W Bedrock Ave, Chicago, IL 60602 is in the amount of $50,000.00, plus interest. The legal description and PIN number of 123 West Bedrock Ave, Chicago, IL 60602 are attached hereto as Exhibit A. ENTER:
How Long Does A Lien Last In Illinois?
Liens don’t last forever. Real estate can’t be tied up by ancient liens. After 7 years, a lien on real estate in Illinois will expire…unless it’s revived.
“A judgment is not a lien on real estate for longer than 7 years from the time it is entered or revived, unless the judgment is revived within 7 years after its entry or last revival and a new memorandum of judgment is recorded prior to the judgment and its recorded memorandum of judgment becoming dormant…
When a judgment is revived it is a lien on the real estate of the person against whom it was entered in any county in this State from the time a transcript, certified copy or memorandum of the order of revival is filed in the office of the recorder in the county in which the real estate is located.” 735 ILCS 5/12-101
If a lien lasts a long time without being paid, not to worry. That judgment the lien is based on compounds interest.
“[J]udgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied” 735 ILCS 5/2-1303
9% is an incredible rate of return. A judgment with a 9% interest rate will double every 8 years.
Child support judgments get an even higher rate of return as the interest rate is compounded monthly.
“Every judgment arising by operation of law from a child support order shall bear interest [compounded monthly]” 735 ILCS 5/12-109(b)
After 20 years, the judgment can no longer be revived.
“A petition to revive a judgment…may be filed no later than 20 years next after the date of entry of such judgment.” 735 ILCS 5/13-218
The median period for homeownership in the US is 13 years so the odds are in your favor of eventually getting paid
Can You File A Lien And A Petition For Rule To Show Cause?
A petition for rule to show cause is the typical collection method in divorce court. Failure to pay some amount as ordered is contempt of court. But, the debtor party is only in contempt if they cannot pay.
If the party owes a massive amount of money, they are never going to be held in contempt for failure to pay in full…because that failure to pay would not be willful.
“The existence of an order of the court and proof of willful disobedience of that order are essential to any finding of indirect contempt.” In re Marriage of Spent, 342 Ill. App. 3d 643, 653, 796 N.E.2d 191, 200 (2003)
As the old saying goes, “If you owe the bank $100, that’s your problem. If you owe the bank $100 million, that’s the bank’s problem.”
So, a judgment lien is usually a good insurance policy against the contemptuous former spouse who may be cash poor but house rich.
If you are considering filing a lien against your former spouse or someone who owes you child support, contact my Chicago, Illinois family law firm to learn more about the most impactful strategy for collecting what is owed.