Wednesday, May 8, 2013

Child Support and Maintenance as Lien Priority

At our continuing education course, Title Waves, held last week at Chase Plaza, a real estate agent inquired whether child or spousal support (maintenance) received lien priority in the same way that real estate tax liens do.

The answer is that they don't. In fact, a child support or spousal support Order is not even a lien in the first place, much less a prioritized lien. Instead, only after there are arrears and a money judgment concerning those arrears is a lien even possible.

So, in every situation, in order to even receive a lien, a judgment is necessary. To be clear, a judgment for periodic future support payments does not qualify for a lien regardless that the Judge Ordered someone to pay. The lien only arises when a Judge indicates through an Order that the payor is in default.

With respect to lien priority, only real estate tax liens and certain mechanics' liens can skip the general rule of first in time, first in right with respect to lien priority.

However, this is not the end of the discussion. You see, while there is no lien priority with respect to real property for child support and maintenance liens, CPLR 5234(b) does provide for priority with respect to personal property. In fact, the CPLR section states, in pertinent part, that "child support shall have priority over any other assignment, levy or process" with respect to satisfying an execution or order of attachment against a debtor.

So, while there is no lien priority to support obligations with respect to real property (land & structures thereon, such as a house); there is lien priority when a Sheriff sells personal property to satisfy the debt on behalf of the creditor.