• Ben Heston

Can an interest in child support be assigned?

This issue came up in Hoover-Reynolds where the petitioner signed a retainer agreement in January of 1995 to retain the services of legal counsel. A provision in the retainer agreement, according to petitioner's attorneys, provided for a “charging lien” against any money awarded in the dissolution action that was to follow. In February of 1995, the court ordered the former husband to pay child support. In August of 1995, petitioner applied for Aid to Families With Dependent Children (“AFDC”), a Federal assistance program for low income families. A requirement of the AFDC program was that an applicant must assign to the county, any rights in support owed to the applicant. A dispute arose over whether funds levied from the former spouse were subject to the charging lien asserted by attorneys or the assignment to the county. The trial court directed the levied funds to the county, finding that the assignment stripped the petitioner of any right to which the funds could attach via the charging lien. The trial court rejected the argument that the charging lien being executed prior to the assignment was controlling on the basis that the right to the funds did not materialize until the funds were actually levied, which came subsequent to the assignment to the county.

At issue on appeal was the validity and priority of the claims against the levied funds. The appellate court found that although an attorney's charging lien may usually attach to recovery obtained in a lawsuit, this does not hold true in the context of child support. Although the specific issue of the validity of an attorney's charging lien against child support was an issue of first impression for the appellate court, the court invalidated the attorney's charging lien citing the longstanding special treatment of child support as an obligation specifically designed to protect the welfare of the child that could not be freely modified by other parties. This reasoning was aligned with other states that had decided the issue. Accordingly, the funds were awarded to the county as a requirement for the Federal AFDC assistance.

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