|
Liens to Enforce Child Support Obligations
Where a past due child support obligation has been reduced to judgment, a lien can be placed against property owned by the parent who owed the child support, and the state agency or custodial parent can execute on that property to collect the amount owed.
Determination of Child Support Arrearage
A court or other state tribunal has discretion to determine the amount of any child support arrearage and how the arrearage shall be paid. When the arrearage is due to a simple failure to properly calculate the amount of child support that would be due prior to the time the amount is adjudicated, a simple mechanism to collect the back due amount is to impose a percent surcharge on each periodic payment; the payment is typically increased from 10 to 25 percent until the arrearage is paid in full. When the amount owed is substantial or disputed, it is usually left to a court to determine the amount and to reduce the amount to judgment. The judgment may then be treated as any other judgment lien on the property of the parent who failed to pay; however there are certain differences between judgments for support obligations and other liens.
Bankruptcy
A debt for support is not dischargeable in bankruptcy. As a result, if a debtor files for either chapter 7 or chapter 13 bankruptcy, any amount of child support arrearage will not be discharged and whatever property is owned by the debtor will still be liable for satisfaction of the lien, even if it is exempt under the bankruptcy law. Where the debtor is the recipient of child support and is owed an amount of past due child support, at least one court has stated that the arrearage is for past due amounts expended by the debtor and that any payment on the arrearage is not a part of the debtor's estate . These payments are not available to the trustee in bankruptcy.
Enforcement of the Lien
While a lien can be placed on the property of the payor parent, the existence of a lien does not give authority for the court to transfer property from the payor spouse to the recipient spouse as part of the dissolution of a marriage or distribution of property. Enforcement of the lien must be brought in a separate action. As in all judgment liens, the first to file takes priority. As a result, where two ex-wives asserted claims against a payor parent's inheritance, the first to perfect the judgment lien had priority. It should be noted that payment of the judgment amount is not sufficient to satisfy the lien; the full amount of interest owed must also be paid. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |