Title Standard Spotlight
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Spring 2006, Volume 5, Number 2
Title Standard Spotlight
Child Support Liens Revisited
by Ward P. Graham, New England Division Counsel
In my Title Standard Spotlight article in the Summer 2005 (Vol. 4, No. 3) issue of The Massachusetts Focus, I focused on two important issues involving Child Support Liens under G.L. c. 119A, §6: the lien period (duration) of a Child Support Lien and the attachment (or, more appropriately, “perfection”) of a recorded Child Support Lien against after-acquired property of a child support obligor. After that article was published, legislation was passed extending the duration of the lien from six (6) years to ten (10) years. This legislation (St. 2005, c. 163, §45, effective December 8, 2005) is the subject of one of the “Quarterly Questions & Answers” in Lynne Murphy Breen’s article in this issue of The Massachusetts Focus.
What the Recent Legislation Did Change
In order to extend the previous six-year child support lien period from six years to 10 years, St. 2005, c. 163, §45 simply provided that, in two certain lines of the statute, the word “six” is replaced with the figure “10.” The lines where this change is made occur within §6(b)(5) of c. 119A, which deals with the duration of a child support lien and the refiling of the lien to extend it. As a result of the change, the relevant portion of §6(b)(5) now provides:
The lien shall expire upon either termination of a current child support obligation and payment in full of unpaid child support, or upon release of the lien by the IV-D agency. In any event, a lien under this chapter shall expire 10 years from the date on which such lien was first perfected; provided, however, that such lien may be extended for additional periods of 10 years each by recording or registering, within the one year next before the expiration of the unexpired lien, a further notice of the lien, as provided in subparagraph (3), without affecting the priority of such lien. [Emphasis added.
What the Recent Legislation Did Not Change
Unfortunately, the amending legislation only changed the lien duration periods under §6(b)(5) and overlooked the existing six-year “perfection” period provided in §6(b)(3). This creates a potential loophole with respect to the perfection of a filed Notice of Child Support Lien against property later acquired by a child support obligor.
The Potential Loophole in the After-Acquired Property Lien Perfection Period
As was discussed at length in the prior article, it is important to keep in mind that, unlike other state tax liens, the lien duration period under §6(b)(5) starts running from the date the lien is “first perfected,” not the date upon which an assessment occurs or the lien first arises. Also, this may not even be the date upon which the lien is filed because of the provisions of §§6(b)(1) and 6(b)(3) regarding the attachment and perfection of a previously filed, unexpired lien against after-acquired property of a child support obligor.
Under §6(b)(3), “perfection” of a filed child support lien occurs either (1) when the notice of lien is filed if the obligor owns an interest in real estate in that county at that time or (2) in the case of after-acquired property, upon the recording or registration of the deed or other instrument by which the support obligor acquires the property after the notice of lien was filed but within six years of the filing of the notice.
As pointed out in the previous article, when the lien perfection period under §6(b)(3) and the lien duration period under §6(b)(5) were both six years before the amending legislation, conveyancing attorneys and title examiners needed to be aware that the initial lien period (even without any refiling) as to after-acquired property might last as long as 11 years, 11 months and 29 or 30 days after the initial Notice of Lien was filed. This is because, under §6(b)(3), the lien did not perfect as to after-acquired property until the deed or other instrument creating the interest was recorded any time within six-years of the date the Notice of Lien was filed and, once perfected, under §6(b)(5), the lien then ran another six years without a refiling having to occur.
Under the amending legislation, because the six-year period in §6(b)(3) did not change, the initial lien against property acquired within that six-year period would have a potential life of up to 15 years, 11 months and 29 or 30 days. Had the amending legislation also changed the perfection period under §6(b)(3) to 10 years, the initial after-acquired property lien period would have been as much as 19 years, 11 months and 29 or 30 days, again, even without refiling.
Gap between Lien Perfection and Lien Duration as to After-Acquired Property
The other effect of leaving the lien perfection period under §6(b)(3) at six years is to create an anomalous situation in which the filed lien would last for 10 years as to property held at the time of the filing of the Notice of Lien or property acquired within six years of such filing, but the lien would not “perfect” as to property acquired by the child support obligor more than six years after the lien was filed but before refiling. Further, since the lien would not have been perfected as to such property, it would seem that the obligor could sell or transfer the property before the Division refiles (which probably would not occur until sometime during the 9th year after the lien was filed) and claim that the property is free of the lien because it never “perfected.” Of course, if the obligor waits until the refiling occurs, then the property would be owned by the obligor at the time of the refiling and the lien would then “perfect.” This is obviously an unintended result of the amending legislation.
Overlooking Collection from After-Acquired Property by Inheritance
Even after the recent amending legislation, §6(b)(3) continues to overlook a potentially lucrative and probably more common source of after-acquired property from which to collect child support arrearages: inherited property. As quoted above, §6(b)(3) provides that a child support lien perfects as to after-acquired property “upon the recording or registering of the instrument by which such interest is obtained in the registry of deeds or registry district . . . where the notice of the lien was filed within six years prior thereto.” Typically, such instruments will include deeds and, perhaps, trusts (although the latter are becoming less and less common due to the increasing use of trustee’s certificates pursuant to G.L. c. 184, §35). Notice that there is no mention of documents filed with the Registry of Probate nor any probate proceedings by which a child support obligor could acquire interests in property after a child support lien is filed.
Certainly, running an obligor in the Registry of Deeds or Probate would not, in most cases, reveal a probate of the person through whom the obligor has obtained title to real estate by inheritance. However, when the estate or the obligor goes to sell or mortgage the property, the closing attorney’s title examination would normally include running the heirs or devisees back 10 years for various after-acquired property liens. A filed child support lien against an heir or devisee would then be discovered. Absent a valid disclaimer of the interest by the obligor pursuant to G.L.c. 191A, the closing attorney would undoubtedly require the fiduciary or obligor to deal with the lien before or as part of the sale or mortgage transaction involving the child support obligor’s interest in the property. That would likely result in contact with the Division to resolve the lien.
As a result of a discussion of these issues with a representative of the Division, I am informed that the loophole involving the six-year after-acquired property period in §6(b)(3) will likely be addressed by corrective legislation in the very near future. As to the issue of adding provisions to the statute to enable the perfection of liens and collection against inherited property, the Division would very much like to address that issue and we may very well see future legislation to fill that gap.