May 2009 Bar Bulletin
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May 2009 Bar Bulletin

 

Child Support Owed Share of Wealth Transfer

By Lisa Dufour

 

The largest wealth transfer in history is occurring right now. This wealth transfer has nothing to do with the downturn in the stock market or problems in the banking industry.

Because of the aging U.S. population, there is an ongoing intergenerational transfer of wealth that will be the most significant transfer of assets in the history of the world. "Between 2011 and 2035, the Silent Generation and first wave Baby Boomers will transfer $38 trillion to heirs and charities."1

What does this mean for a family law client whose ability to survive this worldwide financial downturn may depend on court-ordered child support? A family law practitioner may be able to help protect the children's financial interests if the paying parent is due to inherit assets. Payment for child support can be collected from certain probate assets of an heir/beneficiary since all assets of the paying parent are before the court in a child support collection proceeding.2

The court retains continuing jurisdiction over the parties until all duties of support are satisfied.3 This includes payment of current child support, past due child support (even if no current child support is due) and spousal maintenance.4 A two-year bond to assure payment of future child support also can be required by the court.5 A family law practitioner may therefore seek a court order requiring the beneficiary to pay all past child support obligations, plus two years of future support from his/her inheritance.

Child support has the priority of a secured creditor.6 Child support is also a separate judgment each month as it becomes due. A family law practitioner may appear in a probate action to recover back and current child support from a beneficiary or may bring a contempt action in family law court to secure payment.

In a probate action, it is necessary to give notice of the child support lien to the personal representative. If the child support is collected through the Division of Child Support (DCS), DCS usually files a lien in the county where the paying parent lives (or where the paying parent may have assets) for the full amount of back support.

A phone call to DCS can confirm whether liens have been filed in the county where the probate is being heard.7 DCS will certainly appreciate the tip-off that a non-custodial parent is coming into some money that could be used to satisfy the child support debt.


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