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ENFORCING SUPPORT: What is a REAL PROPERTY LIEN?

Q. How is a family law real property lien used to enforce a support judgment?


A. An effective method for enforcing child and spousal support orders, and collecting what is owed you (plus legal interest at 10% sometimes going back years), is a real property lien. People often find themselves at the last moment surprised by the discovery that a former wife or husband, or other creditor, has liened a home, commerical property, or vacant investment lots. This is extremely unpleasant, particularly when a lender or buyer rightfully announces they cannot close the transaction unless and until a release from that creditor is obtained. This provides effective leverage for the people owed money.

Without some form of a property lien there generally exists few ways to ensure that third parties dealing with the debtor will ensure that unsecured debts owing you are paid. Support payments that are due, whether or not they are then in arrears, are simply nonsecured without more; businesses and individuals dealing with a debtor have no way of knowing they owe such money, and no legal duty to ensure the obligor pays it even if they did.

Property liens are like an insurance policy - even if the person who owes doesn't pay it off now, the lien will haunt the payor, with accruing interest, until she/he satisfies their legal duty to pay. Sometimes this happens years downstream - where, for instance, a person doesn't now own property in their name but one day wants to, does, or inherits. As between families, for instance, people don't do title searches but may gift title to a child, sibling, or parent. Once title goes into the obligor's name, who ever later receives title will end up owing the money if it is not paid. Much like a game of musical chairs.

There is a different remedy for those creditors that believe or find that their former spouse is hiding their interest in real property by titling it in someone else's name.

Abstracts of Judgment Are Effective For Enforcing Judgments

Real property liens are created by recording, with the county recorder's office for the county in which the other party lives or where you know, believe, or anticipate the other property may take title, certain legal documents: an Abstract of Judgment, a Notice of Support Judgment, a certified copy of the order or money judgment, or a federal Notice of Lien. Secured promissory notes that deal with property division equalizations are commonly used as well as a security to obtain payment of non-support obligation and are a form of lien although of a different variety that what is discussed here.

Once you have recorded the appropriate document with the recorder's office (not the court clerk's office, although that office often has to issue the required paperwork that gets recorded elsewhere), the (former) spouse or domestic partner who owes the money is prevented from transferring, selling, or refinancing real property within that county until the lien is extinguished by you.

This occurs because all American states have registries that serve as a data bank and clearing house showing who owns what real property. These records include a "chain of title" history for each such property since written recording began in that jurisdiction.

In order to sucessfully transfer title, refinance, or even purchase real property in California free of encumstrances and debts to a transferee (whether purchaser, lender, or gift recipient), some form of "title search" must be undertaken - in California usually by title companies. These are a species of insurance company that issues a policy to title transferees for a fee. They must do a thorough title search to determine who the legal owner of the property is and whether there are mortgages or other liens that the law requires be paid in full before a "clear title" can ben exchanged.

Since title companies in California are essentially insurance companies, they have a financial interest in not paying out claims for title policies they issued when real property liens were property recording and so lurking in the background.

Liens filed in one county do not attach to property located in a different county. They are only effective for the amount of matured installments due (not for future payments). But even if the underlying principal amount changes - as where the amount increases over time or deceases with partial playments - there is no need to record a new one.

However, when a liened party dies and if they own the residence as community property, or a joint tenant, with another person, like a new spouse or domestic partner, the lien is extinguished and property passes free and clear to the co-tenant.

Otherwise, liens are only extinguished by a satisfaction of judgment or release of judgment lien.

I always recommend to my clients who are owed past due amounts of support, or where there is a property equalization that needs to be enforced, that they obtain a recordable judgment or order from the Family Court and record it in every California county where the obligor resides, might reside, might inherit - and certainly where that individual owns titled real property. At the same time, there are other enforcement remedies that can be concurrently pursued.

I have seen many situations where years after a lien is recorded that a title company or real estate broker calls to ask where 'so and so' is in order that they may be contacted so that the lien may be satisfied by paying the money and interest that is owed.

Of course, these liens are only effective when someone holds title to real property. You will need to use another enforcement remedy if they live beneath the home ownership radar. Here is another highly detailed look at how to enforce divorce judgments and support orders.



TW Arnold


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