sec 23.2 Lien for Property Division Alimony or Support Alimony Ordered in a Divorce Decree
Chapter 23. Judgment Liens, Execution and Attachment
Rule Text
(A) LIEN FOR PROPERTY DIVISION ALIMONY ON OR AFTER SEPTEMBER 1, 1991.
An order for the payment of property division alimony in a divorce decree, whether payable in a single sum or periodically, shall be a lien against the real property of the person against whom the property division alimony is awarded ("the debtor spouse") and provide constructive notice to subsequent purchasers and lienors if:
(1) The order states the amount of alimony as a definite sum*; and
(2) the order expressly provides for a lien on the debtor spouse's real property; and
(3) either
(a) the court's order providing for a lien is recorded in the office of the county clerk for the county in which the real property is situated, or ,
(b) the debtor spouse acquired some or all of the interest in the real property that is subject to the lien via the divorce decree.
(B) LIEN FOR PROPERTY DIVISION ALIMONY BEFORE SEPTEMBER 1, 1991.
An order for the payment of property division alimony in a divorce decree, whether payable in a single sum or periodically, shall be a lien upon the real property of the debtor spouse and provide constructive notice to subsequent purchasers and lienors if:
(1) The order states the amount of alimony as a definite sum*; and
(2) either
(a) the court's order providing for a lien is recorded as provided under the judgment lien statute (see Title Examination Standard 23.1), or
(b) the debtor spouse acquired some or all of the interest in the real property that is subject to the hen via the divorce decree.
(C) LIEN FOR SUPPORT ALIMONY ON OR AFTER SEPTEMBER 8,1976.
An order for the payment of support alimony in a divorce decree, whether payable in a single sum or periodically, shall be a lien upon the real property of the debtor spouse and provide constructive notice to subsequent purchasers and lienors if:
(1) The order states the amount of alimony as a definite sum*; and
(2) the court's order expressly provides for a lien on the debtor spouse's real property; and
(3) either
the court's order providing for a lien is recorded in the office of the county clerk for the county in which the real property is situated, or
the debtor spouse acquired some or all of the interest in the real property subject to the lien via the divorce decree.
(D) LIEN FOR SUPPORT ALIMONY BEFORE SEPTEMBER 8,1976.
An order for the payment of support alimony in a divorce decree, whether payable in a single sum or periodically, shall be a lien upon the real property of the debtor spouse and provide constructive notice to subsequent purchasers and lienors if:
(1) The order states the amount of alimony as a definite sum*; and
(2) either
the court's order providing for a lien is recorded as provided under the judgment lien statute (see Title Examination Standard 23.1), or
the debtor spouse acquired some or all of the interest in the real property subject to the lien via the divorce decree.
(E) DURATION OF DECREE-ORDERED LIEN FOR PROPERTY DIVISION OR SUPPORT ALIMONY
An examiner shall disregard a lien for the payment of either property division or support alimony in a divorce decree as extinguished by operation of law within the following time frames:
(1) A lien payable in a single lump sum with no stated due date is extinguished five (5) years after the date of pronouncement of the lien by the court in a divorce case:
(2) a lien payable in a single lump sum with a state due date is extinguished five (5) years after the due date of the lump sum obligation as set out in the divorce decree;
(3) a lien payable in installments is incrementally extinguished as to each installment five (5) years after the due date of each installment, and the examiner shall disregard the lien, as extingushed, five (5) years after the due date of the final installment; and
(4) a lien payable in a single lump sum which is due upon the occurrence of a designated event (e.g., sale of real property) is extinguished five (5) years after the designated event occurs. For constructive notice, evidence of the occurrence of the designated event must appear in the record.
Authority: First Community Bank of Blanchard v. Hodges, 907 P.2d 1047 (Okla. 1995); Record v. Record, 816 P. 2d 1139 (Okla. 1991); 12 O.S. §95; 42 O.S. § 23; and 12 O.S. § 696.2(E).
Comment: The title examiner should confirm that the divorce decree has been filed with the court clerk in order to determine whether the time for appeal has run. Authority: 12 O.S. § 696.2(E).
History: The 2003 Report of the Title Examination Standards Committee recommended adding this new Section E to Standard 23.2. 74 O.B.J. 2801 (10/11/2003). The Real Property Law Section approved the recommendation Nov. 13, 2003, and the House of Delegates adopted it on Nov. 14, 2003. 73 O.B.J. 3231 (11/22/2003).
The 2013 Title Examination Standards Committee Proposed revising the authority cited in Standard 23.2(G) to make the examiner aware of the holding Dilbeck v. Dilbeck. 83 O.B.J. 2211, October 13, 2013. The Real Property Law Section approved the committee's recommendation on November 15, 2013, and the recommendation was approved by the House of Delegates on November 16, 2013.
(F) LIEN FOR ARREARAGE IN THE PAYMENT OF ALIMONY
An arrearage in the payment of property division alimony or support alimony that has been reduced to a judgment may be a lien against the real property of the debtor spouse when such judgment is filed as provided under the judgment lien statute.
Authority: 12 O.S. §§ 181 & 706; 16 O.S. § 15; 43 O.S. § 134 (formerly numbered as 12 O.S. § 1289) and the following prior versions thereof. 1987 Okla. Sess. Laws, ch. 130, § 1, eff. June 3, 1987, 1976 Okla. Sess. Laws, ch. 61, § 1, eff. September 8, 1976, and 1968 Okla. Sess. Laws, ch. 161, § 1; the following prior versions of 43 O.S. § 120 (then numbered as 12 O.S. § 1278): 1976 Okla. Sess. Laws, ch. 154, § 1, 1975 Okla. Sess. Laws, ch. 350, § 1, eff. October 1, 1975; Robert G. Spector, 63 O.B.J. 3473-74 (12/5/92).
Caveat:
(1) The statement of a definite sum is not a requirement when the creditor spouse is awarded a specific asset in lieu of alimony, Mayhue v. Mayhue, 706 P.2d 890 (Okla. 1985) (percentage of royalties from oil lease); Frensley v. Frensley, 177 Okla. 221, 58 P.2d 307 (1936) (interest in proceeds of a trust); Clark v. Clark , 460 P.2d 936 (Okla. 1969) (involving an insurance policy).
(2) A statement of the amount of alimony as a definite sum is not a requirement in a separate maintenance action, Hughes v. Hughes , 363 P.2d 155 (Okla. 1961).
(3) It is not necessary to comply with the judgment lien perfection provisions of 12 O.S. § 706 (i.e., a "statement of judgment") where the divorced spouse has a decree imposed lien to secure payment of alimony; the mere filing of the divorce decree with the county clerk, without a "statement of judgment", will establish the lien priority; First Community Bank of Blanchard v. Hodges , 907 P.2d 1047 (Okla. 1995).
Comment: For constructive notice purposes, with both property division and support alimony, the court's decree or order should be recorded with the county clerk. Nevertheless, if a lien for property division alimony or support alimony is specifically created in a divorce decree and that divorce decree is a link in the chain of title to the real property, courts have held subsequent bona fide purchasers and lienors to have constructive notice of the lien, even though the court's decree or order creating the lien was never recorded in the office of the county clerk, Watkins v. Watkins, 922 F.2d 1513 (10th Cir. 1991) (purchaser takes real property with constructive notice of what appears in the chain of title: because the divorce decree is what gave the ex-husband title to the property and that divorce decree revealed the existence of the lien in favor of the ex-wife, a bona fide purchaser would be on constructive notice of her lien); United Oklahoma Bank v. Moss , 793 P.2d 1359 (Okla. 1991). Thus, when the debtor spouse acquires part or all of the title to real property through a divorce decree, language in the decree which creates a specific lien on that property cannot be ignored, even though the decree or order has not been recorded in the office of the county clerk.
Amendment history: /P> History: This standard has been renumbered; it was previously Standard 12.1, 1985 Report of the Title Examination Standards Committee, 56 O.B.J. 2535, 2537 (1985). The 1983 Report of the Title Examination Standards Committee, 54 O.B.J 2379, 2382 (1983) recommended substantial changes in this standard. These changes were approved by the Real Property Section, November 3, 1983, and were adopted by the House of Delegates on November 4, 1983. The Section made some grammatical corrections prior to its approval. A prefatory note referring to recent case law ( United Oklahoma Bank v. Moss , 793 P.2d 1359 (Okla. 1991) and Watkins v. Watkins , 922 F.2d 1513 (10th Circuit 1991) and statutory changes (43 O.S. § 134(C)) was proposed in the 1991 Report of the Title Examination Standards Committee, 62 O.B.J. 3269 (1991), approved by the Real Property Section November 14, 1991, and adopted by the House of Delegates on November 15, 1991, 62 O.B.J. 3531 (1991). The 1993 Report of the Title Examination Standards Committee proposed revising this standard to reflect both a 1991 amendment of 43 O.S. § 134 and two 1991 cases cited in the former prefatory note to the standard. The Committee also proposed a substantial reorganization of the standard for purposes of clarity, 64 0.B.J. 3245, 3248-49 (10/30/93). The Real Property Section approved the proposed revisions on November 4, 1993. The House of Delegates adopted the amended standard on November 5, 1993, 64 O.B.J. 3409 (11/13/93).