A creditor may run into trouble in seeking to pursue their interest through real property of a married couple. Lappas v. Brown, 335 Pa. Super. 108 (Pa. Super. 1984), established that property subject to an order of court is in custodia legis, or under wardship of the court, pending compliance with the order. In Lappas, the underlying dispute involved a defense attorney who confessed judgment to get payment for legal services rendered. Meanwhile, the Commonwealth had seized all available funds as derivative contraband. Ultimately, the attorney was unable to collect his fee due to the existing order of court regarding the forfeiture. City of Easton v. Marra, 862 A.2d 170 (2004), expanded the principle of in custodia legis to actions for divorce and equitable distribution. In City of Easton, a divorce proceeding had been pending since 1988 when the City sought collection of unpaid taxes by forcing a tax sale of the real property the parties owned. A motion to stay the sheriff’s sale was granted since the property remained in custodia legis pending final resolution and equitable distribution per the parties’ divorce action.
Another example of the principle in the context of a divorce action was illustrated in Fidelity Bank v. Carroll, 416 Pa. Super. 9 (Pa. Super. 1992). Husband had a judgment entered solely against him for unsecured loans which went into default. The bank sought to put a lien on the marital residence however the Court held the bank’s lien could not attach to the marital home since the marital home was subject to equitable distribution in the pending divorce action. “Accordingly, the Bank could acquire no greater interest in the marital home than that of [Husband]. Here, it turns out that [Husband] has no interest in the marital home. Therefore, the Bank also has no interest in the home.” Id. at 14. In summary, a creditor cannot touch the interest of a non-debtor spouse, e.g. their share of a marital home.
