Many people may not realize, including some attorneys, that each installment of overdue support owed by a noncustodial parent becomes a lien by operation of law against the real and personal property of the noncustodial parent. That means that these liens “arise” whenever child support becomes past due!
This is a kind of super lien that we do not often see in other areas of the law. Most liens do not arise simply “by operation of law”. These liens arise without any action needing to be taken by anyone.
Most liens focus either on real property or personal property, but the overdue child support lien applies both to real property and personal property. This can be confusing, even for lawyers. In a recent Illinois case, the issue was confusing even for a trial court judge.
In that case, a child support debtor owned some real property in trust. The kind of trust in which he owned the property is known as an Illinois Land Trust. Illinois land trusts are unique in that a bank usually holds title to the property, and the real owner in interest has only what is considered to be a beneficial interest in the land.
People own property in land trusts to avoid creditors. When a creditor obtains a judgment lien and records the judgment lien in the county in which the real property is located, it does not attach to beneficial interests in land trusts because they are not considered interests in real estate. Judgment liens only become liens against interests in real estate.
For these reasons, the trial court found that the lien for child support did not apply to the real property that was owned in the land trust. On appeal, however, that decision was overturned because of the “super lien” nature of liens for unpaid child support. It didn’t matter whether the ownership was considered an interest in real property or personal property, liens for unpaid child support apply to both, and they apply by operation of law.
A person owing child support should recognize the far-reaching nature of the liens that apply for unpaid child support. This is good incentive to pay your child support!
For the person who is owed child support, these liens are a good thing, but you need to be aware of some additional information. Even though a lien arises by operation of law, that fact does not mean that a lien automatically attaches. Liens need to be perfected. That is, something usually needs to be done in order to make sure that the lien “attaches” and is effective to prevent property from being sold without paying off the lien.
That something extra is usually a notice or recording of some kind. In the case described above, the lien was recorded against the real estate, and a notice of the lien was sent to the owner. The court said that this was a satisfactory way of perfecting/attaching the lien.
The key is that something must be done in order to protect your rights to payment of unpaid child support. When someone refuses or fails to pay child support, unless the State has stepped into to help try to collect it, you need to do something, and perfecting the lien that arises by operation of law is one way to help ensure that the support will be paid.
If you are owed unpaid child support that has not been collected, it may be time for you to make a visit with an attorney to talk about what needs to be done to perfect the lien and put you in the best possible position of recovering payment of that past due child support. Of course, if the debtor has no assets and no income, there is not much a person can do. You can’t get blood out of a stone, as the saying goes.
Just because a person does not currently have any assets or income, however, does not mean that that person will forever not have any assets or income. People sometimes inherit money. There can be lottery or riverboat winnings, and other circumstances in which people come into money, at least for a time. If you are owed past due child support, learning about and understanding your right to be paid and the methods by which you can compel payment is important.Kevin G. Drendel Drendel & Jansons Law Group 111 Flinn Street Batavia, IL 60510 (630) 406-5440 (630) 406-6179 fax [email protected] foxvalleyestateplanning.com