What Is Charging Order Protection?
A charging order is a court-ordered lien against an LLC member's economic interest (their right to receive distributions). It's the only remedy a personal creditor can obtain against an LLC member in states with strong charging order statutes—and it's remarkably weak.
What a Charging Order Does
A charging order allows the creditor to receive distributions if and when the LLC chooses to make them. The creditor gets nothing if the LLC retains profits. The creditor cannot:
- Force the LLC to make distributions
- Participate in management or vote
- Access LLC assets directly
- Force liquidation of the LLC
- Inspect books and records (in most states)
Why This Protects You
Your personal creditor (car accident victim, lawsuit judgment, divorced spouse) cannot seize the LLC's real estate, bank accounts, or equipment. They can only wait for distributions—which a well-managed LLC simply doesn't make while the charging order is active.
The "Exclusive Remedy" Rule
In the strongest states (Wyoming, Delaware, Nevada, Alaska), the charging order is the exclusive remedy. Courts cannot grant foreclosure, turnover orders, or other relief. The creditor is stuck waiting indefinitely for distributions that may never come.
Real-world result:
In practice, creditors with charging orders often settle for pennies on the dollar because they cannot access LLC assets and face potential "phantom income" tax liability (they may owe tax on LLC profits allocated to them even if no cash is distributed). This makes LLCs one of the strongest domestic asset protection tools.
The Critical Exception: Single-Member LLCs
SMLLC weakness in many states:
Many states allow courts to grant foreclosure orders or other remedies beyond a charging order if the LLC has only one member. The rationale: there are no other innocent members to protect, so the creditor should be able to reach the debtor's full interest. This dramatically weakens protection in states like Florida, Georgia, Colorado, and others.
Solution: Form the LLC in Wyoming or Delaware (which protect single-member LLCs), or convert to a multi-member LLC (bring in a spouse, child, or trust as a small co-member).
When Charging Order Protection Applies
✅ Protected (Personal Creditor)
- Car accident judgment against you personally
- Personal credit card or loan default
- Divorce settlement claim
- Personal tort (slander, malpractice not covered by LLC)
- Personal guarantee called by bank
❌ NOT Protected (LLC-Level Creditor)
- Tenant sues the LLC for slip-and-fall
- LLC defaults on its own debt
- Contract breach by the LLC
- Unpaid LLC vendors or contractors
- LLC tax liens (IRS can seize LLC assets)
Key distinction: Charging order protection shields LLC assets from your personal creditors. It does not protect the LLC from its own creditors (that's what liability insurance and proper LLC structure are for).
Legal Mechanics: How Charging Orders Actually Work
Step-by-Step: What Happens When You Get Sued Personally
- Creditor obtains judgment against you personally (e.g., $500K car accident judgment).
- Creditor discovers you own 100% of "Smith Real Estate Holdings LLC" (which owns $2M in rental properties).
- Creditor asks the court for a charging order against your LLC membership interest.
- Court grants charging order — creditor now has a lien on your right to receive distributions from the LLC.
- LLC manager (you or your trustee) decides not to make distributions while the charging order is active. Profits stay in the LLC, reinvested or held in reserves.
- Creditor receives nothing. They cannot force distributions, access LLC assets, or vote/participate in management.
- Creditor faces "phantom income" risk: If the LLC is taxed as a partnership, the creditor may be allocated taxable income (K-1) even though they receive no cash. They owe tax on money they didn't get.
- Creditor eventually settles for 10-20 cents on the dollar (or gives up entirely).
Why Creditors Hate Charging Orders
No Access to Assets
The creditor cannot touch the LLC's real estate, bank accounts, inventory, or equipment. They're outside looking in, waiting for distributions that never come.
No Control
They cannot vote, remove the manager, force liquidation, or inspect books. They have zero say in LLC operations.
Phantom Income Tax Liability
If the LLC is taxed as a partnership (most LLCs), profits are allocated to members annually on Schedule K-1. The creditor with a charging order receives the K-1 and owes income tax—even if the LLC distributes nothing. They pay tax on phantom income.
Indefinite Wait
There is no time limit. A well-structured LLC can avoid distributions indefinitely (reinvest profits, pay manager salaries, hold reserves). The creditor waits years with no recovery.
Case example (anonymized):
A physician in Wyoming was sued for $800K (personal car accident). The creditor obtained a charging order against his Wyoming LLC (which owned $1.5M in rental properties). The LLC made no distributions for 4 years. The creditor received phantom K-1 income of $60K/year (owed ~$18K/year in taxes out-of-pocket). After 4 years, the creditor settled for $80K (10 cents on the dollar) to avoid continued tax liability. The physician kept the LLC intact.
Reverse Veil Piercing: The Scary Exception
What is reverse veil piercing?
Reverse veil piercing allows a creditor to reach inside the LLC and seize assets directly, bypassing the charging order protection. Instead of piercing the veil to hold the owner personally liable (traditional veil piercing), the court pierces in reverse to satisfy the owner's personal debt with LLC assets.
When courts allow reverse veil piercing:
- Single-member LLCs in weak states — Courts reason: "There are no other innocent members to protect, so why shouldn't the creditor access the LLC assets to satisfy the debtor's personal judgment?"
- Alter ego / LLC is owner's "mere instrumentality" — Debtor treats LLC as personal piggy bank; commingling funds, no separation
- Fraud or undercapitalization — LLC formed solely to hide assets from a known creditor
States that allow reverse veil piercing for SMLLCs: Florida, Georgia, Colorado, several others. States that prohibit it: Wyoming, Delaware, Nevada (statute explicitly bars reverse piercing).
The Phantom Income Problem (K-1 Allocated Income)
This is one of the most powerful disincentives for creditors pursuing charging orders:
How Phantom Income Works
Most LLCs are taxed as partnerships (pass-through). Each year, the LLC's taxable income is allocated to members on Schedule K-1, regardless of whether cash is distributed. If the LLC earns $100K profit but distributes $0, each member (or creditor with a charging order) still receives a K-1 showing their share of the $100K income.
Result for creditor: They owe income tax on money they never received. If they hold a charging order for 5 years and receive K-1s totaling $300K in allocated income, they could owe $90K+ in taxes (at 30% effective rate) while collecting $0 in distributions.
Why this matters: Many creditors abandon charging orders or settle cheaply to avoid continued phantom income tax liability.
Pro tip:
To maximize phantom income pressure, structure your LLC as a partnership (default for multi-member) rather than electing S-Corp or C-Corp taxation. Partnership taxation creates K-1 allocations with no cash distribution requirement.
Single-Member vs Multi-Member LLC: Critical Differences
The number of LLC members has enormous implications for charging order protection. Many states treat single-member LLCs (SMLLCs) much worse than multi-member LLCs (MMLLCs).
|
Single-Member LLC (SMLLC) |
Multi-Member LLC (MMLLC) |
| Charging Order Protection |
Moderate — Many states allow foreclosure or other remedies beyond charging order |
Strong — Charging order typically the exclusive remedy in most states |
| Reverse Veil Piercing Risk |
High Risk — Courts may allow creditors to seize LLC assets directly (FL, GA, CO, etc.) |
Low Risk — Courts protect innocent co-members; reverse piercing rare |
| Wyoming / Delaware |
Strong — Both states protect SMLLCs by statute |
Strong — Full charging order protection |
| Tax Treatment |
Disregarded entity (Schedule C or E on personal 1040) |
Partnership (Form 1065, K-1s to members) |
| Phantom Income Pressure |
None (SMLLC income already on your return; creditor gets nothing extra) |
High (creditor receives K-1 and owes tax on allocated income even if no distributions) |
| Formation Complexity |
Simple (one member, one set of docs) |
Slightly more complex (operating agreement with multiple members, capital accounts) |
| Best For |
Wyoming/Delaware LLCs; solo owners prioritizing simplicity |
Maximum asset protection; any state; creates phantom income pressure on creditors |
Converting SMLLC to MMLLC for Stronger Protection
If you have a single-member LLC in a weak state (or even in WY/DE and want maximum protection), consider bringing in a second member:
Option 1: Spouse as Co-Member
Transfer a small percentage (1-10%) to your spouse. This converts the LLC to a multi-member LLC, triggering partnership tax treatment and stronger charging order protection. In community property states, this may not require a gift (already co-owned).
Option 2: Trust as Co-Member
Transfer a small interest to an irrevocable trust (e.g., your Wyoming Qualified Spendthrift Trust). The trust becomes a co-member, creating MMLLC status. This pairs asset protection layers: trust protects against personal creditors, LLC protects trust assets from LLC-level claims.
Option 3: Child or Family Member
Gift a small percentage (1-5%) to an adult child or family member. Triggers MMLLC status and can serve estate planning goals (gradual wealth transfer). File gift tax return if over annual exclusion ($18K in 2024).
Option 4: Second LLC as Member
Create a second LLC (owned by you or a trust) and make it a 1-5% member of the primary LLC. Both are now MMLLCs. Adds a layer of separation and flexibility.
Tax note on conversion:
Converting from SMLLC to MMLLC changes your tax status from disregarded entity to partnership. You'll need to file Form 1065 (partnership return) and issue K-1s annually. Consult your CPA before converting. In most cases, the added asset protection is worth the extra compliance.
States Where SMLLC Protection is Weak
The following states have case law or statutes allowing foreclosure or other remedies beyond charging orders for single-member LLCs:
States Allowing Reverse Veil Piercing or Foreclosure for SMLLCs
- Florida — Olmstead v. FTC (landmark case); courts can order turnover of SMLLC assets
- Georgia — Follows Olmstead reasoning
- Colorado — Asset Cap. Co. v. Streufert; foreclosure allowed for SMLLCs
- Idaho, Kansas, Louisiana, Montana, North Dakota, South Dakota, Utah — Case law or statutes weaken SMLLC protection
If you formed an SMLLC in any of these states, strongly consider: (1) converting to MMLLC, or (2) forming a new LLC in Wyoming/Delaware and transferring assets.
States with Strongest SMLLC Protection
Wyoming and Delaware lead:
Wyoming: Wyo. Stat. § 17-29-503 explicitly states charging order is the exclusive remedy for SMLLCs and MMLLCs. Courts cannot grant foreclosure, turnover, or other relief.
Delaware: 6 Del. C. § 18-703 provides that charging order is the exclusive remedy, regardless of member count. Reverse veil piercing prohibited by statute.
Other strong states: Nevada, Alaska, South Dakota (trust-friendly states with strong LLC statutes).
State-by-State Charging Order Protection Comparison
Charging order protection varies dramatically by state. Where you form your LLC matters more than almost any other factor.
Strong: Charging order exclusive remedy for SMLLC + MMLLC
Moderate: Strong for MMLLC, weaker for SMLLC
Weak: Courts allow foreclosure or reverse piercing for SMLLC
Wyoming ★★★
Delaware ★★★
Nevada ★★★
Alaska ★★★
South Dakota ★★★
Texas ★★
Arizona ★★
Tennessee ★★
Utah ★★
Oklahoma ★★
Florida ★
Georgia ★
Colorado ★
California ★★
New York ★★
Illinois ★★
Detailed State Analysis
Wyoming (Best)
★★★ Strong
- Wyo. Stat. § 17-29-503: charging order is exclusive remedy for SMLLC and MMLLC
- No reverse veil piercing allowed by statute
- Strong case law supporting asset protection
- No state income tax on LLC earnings
- Annual fees: $60/year + $0.0002 per dollar of WY assets (capped at $200K assets)
I form most LLCs in Wyoming for maximum protection.
Delaware
★★★ Strong
- 6 Del. C. § 18-703: charging order exclusive remedy
- Reverse veil piercing prohibited by statute
- Well-developed case law and Court of Chancery expertise
- Annual franchise tax: $300/year
- Preferred by VC-backed companies (familiarity)
Best for: Businesses seeking funding or selling; asset protection nearly equal to Wyoming.
Nevada
★★★ Strong
- Nev. Rev. Stat. § 86.401: charging order exclusive remedy for SMLLC and MMLLC
- No state income tax
- Annual fees: $350 initial list + $200/year
- Strong privacy protections
Note: Nevada fees are higher than Wyoming; protection level similar.
Florida (Weakest)
★ Weak
- Olmstead v. FTC (2001): Florida Supreme Court allowed creditor to force sale of SMLLC assets
- Multi-member LLCs still have charging order protection
- No income tax, but weak asset protection for SMLLCs
Fix: Convert to MMLLC or transfer to Wyoming/Delaware LLC.
California
★★ Moderate
- Charging order protection exists but not as strong as WY/DE
- High taxes (13.3% top rate) and fees ($800/year minimum franchise tax)
- Courts may allow additional remedies in some cases
Better option: Form in Wyoming; foreign qualify in CA only if required (doing business test).
Texas
★★ Moderate
- Tex. Bus. Orgs. Code § 101.112: charging order available, but courts have discretion for additional remedies
- No state income tax
- MMLLC protection is strong; SMLLC less clear
Recommendation: Use MMLLC or WY/DE formation for stronger protection.
Foreign Qualification Note:
If you form your LLC in Wyoming or Delaware but operate in another state (e.g., you own rental property in California), you may need to foreign qualify (register) in that state. However, the internal affairs doctrine means your LLC is still governed by Wyoming/Delaware law for member-creditor disputes, preserving charging order protection even if foreign qualified elsewhere.
Cost Comparison: WY vs DE vs CA
| Cost Item |
Wyoming |
Delaware |
California |
| Formation Filing Fee |
$100 |
$90 |
$70 |
| Annual Report Fee |
$60 + asset fee |
$300 |
$20 |
| Franchise Tax / Minimum Tax |
$0 (no state income tax) |
$0 (no franchise tax on LLCs) |
$800/year minimum |
| Registered Agent (typical) |
$50-150/year |
$50-150/year |
$0 (can use yourself) |
| 5-Year Total Cost |
~$850 |
~$1,840 |
~$4,170 |
| Asset Protection |
★★★ Strongest |
★★★ Strongest |
★★ Moderate |
Verdict: Wyoming offers the lowest cost and strongest protection. Delaware is excellent if you need VC credibility. California is expensive and offers weaker protection—avoid for asset protection purposes.
How to Maintain Charging Order Protection (Avoid Piercing the Veil)
Even the strongest LLC in Wyoming or Delaware will lose protection if you fail to observe corporate formalities or commingle funds. Courts will "pierce the veil" (or allow reverse piercing) if the LLC is your "alter ego."
Critical Rules to Follow
1. Never Commingle Funds
Rule: LLC money stays in LLC accounts. Personal money stays in personal accounts. Never mix.
Red flags:
- Paying personal credit cards from LLC account
- Depositing LLC rent checks into personal account
- Using LLC funds for groceries, vacations, personal expenses
Fix: If you need money, take a formal distribution or salary (documented). Pay yourself; don't just grab LLC funds.
2. Maintain Separate Bank Accounts
Every LLC must have its own bank account in the LLC's name. Get an EIN, open a business account, and use it exclusively for LLC business.
Don't: Run LLC income/expenses through your personal checking account, even if you're a single-member LLC.
3. Sign Contracts in LLC Name
Right: "Smith Real Estate Holdings LLC, by John Smith, Manager"
Wrong: Just sign "John Smith" on LLC contracts (creates personal liability).
Always make clear you are acting as manager of the LLC, not personally.
4. Keep Corporate Records
Maintain an LLC record book with:
- Articles of Organization
- Operating Agreement (signed)
- Annual meeting minutes or manager resolutions
- Member ledger / capital account records
- Tax returns (1065 or 1040 Schedule C/E)
Frequency: Annual resolutions at minimum; document major decisions (buying property, taking loans, admitting members).
5. Adequate Capitalization
The LLC should have enough assets or insurance to cover its reasonably anticipated liabilities. Don't strip all cash out and leave the LLC judgment-proof.
Example: If your LLC owns rental properties, maintain adequate liability insurance and cash reserves for repairs. Don't distribute 100% of rent income every month.
6. Respect the LLC as Separate Entity
The LLC is a separate legal person. Treat it that way:
- File annual reports on time
- Pay LLC bills from LLC account (not personal funds)
- Invoice the LLC if you loan it money (document as loan, not gift)
- Hold annual member meetings (even if you're the only member)
Annual Formalities Checklist
Red Flags That Will Destroy Your Protection
Avoid these at all costs:
- Commingling funds — mixing personal and LLC money
- No operating agreement — courts may not respect LLC if no written agreement
- Failing to file annual reports — LLC gets administratively dissolved; loses protection
- Undercapitalization + stripping assets — taking all cash out, leaving LLC with no reserves
- Fraudulent transfer — moving assets into LLC after lawsuit filed or claim arises
- No separate books/records — treating LLC as your personal account
- Not maintaining registered agent — LLC falls out of good standing
What If You've Already Made Mistakes?
It's not too late to fix:
If you've been sloppy with LLC formalities, stop immediately and clean up:
- Open a separate LLC bank account if you don't have one
- Stop commingling; document any prior personal funds as loans or capital contributions
- Prepare retroactive minutes for past years (document major decisions)
- Draft and sign an operating agreement if you don't have one
- Reinstate LLC if administratively dissolved (file back reports, pay penalties)
- Going forward: perfect compliance
Courts look at the totality of circumstances. If you've been mostly compliant and fix issues promptly, you can still preserve protection.
Real-World Charging Order Cases
Understanding how charging orders work in practice—when they succeed and when they fail—is critical to structuring proper protection.
Case 1: Charging Order Protection Works (Wyoming MMLLC)
Scenario (anonymized):
Facts: Dr. Smith, a physician in Wyoming, was sued personally for $800K (car accident, not malpractice). He owned 90% of "Smith Medical Properties LLC" (Wyoming MMLLC; his spouse owned 10%). The LLC owned three medical office buildings worth $2.5M, with $600K in equity after mortgages.
Creditor's action: Obtained $800K judgment and applied for charging order against Dr. Smith's 90% LLC interest.
Result: Court granted charging order only (exclusive remedy under Wyoming law). LLC made no distributions for 3 years (reinvested profits into property improvements). Creditor received $0 in distributions but was allocated $45K/year in K-1 income (owed ~$13K/year in taxes). After 3 years ($39K paid in taxes, $0 received), creditor settled for $120K (15 cents on the dollar).
Lessons: (1) Multi-member LLC triggered partnership tax and phantom income pressure. (2) Wyoming's exclusive-remedy statute prevented foreclosure. (3) LLC's discretion to withhold distributions starved the creditor.
Case 2: Reverse Veil Piercing (Florida SMLLC Fails)
Olmstead v. Federal Trade Commission (2000):
Facts: Olmstead owed the FTC $200K+ for deceptive business practices. He owned 100% of a Florida SMLLC that held real estate and investments. He sought charging order protection (arguing creditor could only receive distributions, not seize assets).
Creditor's action: Asked Florida court to allow foreclosure sale of Olmstead's LLC interest or direct turnover of LLC assets.
Result: Florida Supreme Court allowed the FTC to foreclose on Olmstead's LLC interest and take control of the LLC. Rationale: In a single-member LLC, there are no other innocent members to protect, so the charging order restriction doesn't apply. The court ordered turnover of LLC assets to satisfy the judgment.
Lessons: (1) SMLLCs in Florida (and states following Olmstead) get little protection. (2) Solution: convert to MMLLC or use Wyoming/Delaware. (3) This case is cited nationwide; many states follow similar reasoning for SMLLCs.
Case 3: Commingling Destroys Protection
Scenario (composite of real cases):
Facts: Business owner formed a Delaware LLC to hold rental properties. He routinely paid personal credit cards from the LLC account, deposited rent checks into his personal account, and used LLC funds for groceries and vacations. No operating agreement, no annual meetings, no separate records.
Creditor's action: Obtained personal judgment for $400K (business dispute unrelated to LLC). Creditor argued LLC was owner's "alter ego" and requested reverse veil piercing to reach LLC assets directly.
Result: Court found LLC was a sham / alter ego due to total disregard of corporate formalities and commingling. Allowed creditor to seize LLC bank account and force sale of rental properties to satisfy judgment.
Lessons: Even Delaware's strong statute won't save you if you treat the LLC as your personal piggy bank. Formalities matter enormously.
Case 4: Fraudulent Transfer Voids Protection
Scenario:
Facts: Individual was sued for $1M (tort claim). After lawsuit was filed, he quickly transferred his personal rental property into a newly formed Wyoming LLC, hoping to shield it from the judgment.
Creditor's action: Filed fraudulent transfer claim under state law (argued transfer was made to hinder/delay creditor with actual intent to defraud).
Result: Court voided the transfer as fraudulent. LLC formation after the claim arose with intent to defeat the creditor = classic fraudulent transfer. Property was deemed still owned personally; creditor could attach it directly.
Lessons: Asset protection planning must be done before trouble arises. Transferring assets after a lawsuit is filed (or when a claim is imminent) will be unwound. Timing is everything.
Case 5: Multi-Member LLC + Phantom Income = Settlement
Scenario:
Facts: Real estate investor (Texas resident) formed a Delaware MMLLC with his wife (95% him, 5% wife). LLC owned $3M in rental properties. He was sued personally for $600K (car accident). Creditor obtained charging order.
LLC's response: LLC suspended all distributions. Profits (~$120K/year) stayed in LLC, reinvested into property renovations and reserves. Creditor received K-1 showing $114K allocated income (95% of $120K). Creditor owed ~$34K/year in federal/state taxes on phantom income.
Result: After 2 years, creditor had paid $68K in taxes out-of-pocket and received $0 in distributions. Creditor settled for $100K cash (17 cents on the dollar) to avoid further phantom tax liability.
Lessons: MMLLC + partnership taxation = powerful creditor deterrent. Phantom income forces creditors to pay tax on money they never see, pressuring settlement.
Key Takeaways from Real Cases
✅ What Works
- Multi-member LLC (even 95/5 split)
- Strong state (WY, DE, NV)
- Perfect separation of funds (no commingling)
- Discretion to withhold distributions
- Partnership taxation (phantom income pressure)
- Proper formalities (minutes, records, operating agreement)
❌ What Fails
- Single-member LLC in weak states (FL, GA, CO)
- Commingling personal and LLC funds
- No operating agreement or corporate records
- Transferring assets after lawsuit filed (fraudulent transfer)
- Undercapitalization + stripping all assets out
- Treating LLC as "alter ego" / personal account