§ 2215 — Child support liens

Delaware § 2215

• Jurisdiction: Delaware
• Title: 13
• Ch. 22: DIVISION OF CHILD SUPPORT SERVICES

Text

(a) A child support installment or payment that is past due is, as of the date on which it was due, a lien in favor of the obligee in an amount sufficient to satisfy the arrearage, whether the amount due is a fixed sum or is accruing periodically. A child support lien under this subsection arises by operation of law, without the necessity of obtaining a judicial determination of the arrearage or an order creating the lien, and such lien incorporates any unpaid child support that accrues while the lien is in effect.

(b) From the time it is perfected as provided in this section, the child support lien arising under subsection (a) of this section shall bind all real and personal property, and any interest in property, whether legal or equitable, of the obligor. An interest in property acquired by the obligor after the child support lien arises shall be subject to such lien, subject to the limitations described in subsection (l) of this section.

(c) A child support lien may be enforced as provided in this chapter or as otherwise provided by law.

(d) The remedies provided by this chapter do not affect the availability of other remedies provided by law to enforce liens and judgments.

(e) A child support lien of another state must be recognized and given full faith and credit by a tribunal in this State, without the necessity of a prior judicial notice or hearing.

(f) The IV-D agency, party or entity requesting enforcement in Delaware of a child support lien arising in another state shall certify that the obligor is delinquent under a support order. In order to perfect the child support lien against real and personal property in this State, the IV-D agency, party or entity seeking enforcement must comply with the notice requirements of this section.

(g) If an obligor has been ordered by the Court to pay child support and owes arrears or retroactive support in a case enforced by the Division of Child Support Services under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), the Director of the Division of Child Support Services may do 1 or more of the following:

(1) Cause a lien for arrears or retroactive support to be placed upon the obligor’s distributive share of a decedent’s estate by filing notice of a child support lien with the Register of Wills of the county in which the decedent’s estate is being administered and by sending a written copy of the notice to the obligor and to the personal representative of the decedent. The lien attaches to the obligor’s distributive share upon the filing of the notice of the lien with the Register of Wills. Thereafter, the personal representative of the decedent shall pay to the Director the lesser of the obligor’s distributive share or the amount of arrears or retroactive support. If the personal representative fails to pay the Director in accordance with the lien, the personal representative is liable on the personal representative’s bond to the Director, as the payee of the child support obligation.

(2) a. Cause a lien for arrears or retroactive support to be placed upon any claim, counterclaim, cross-claim, action or suit, at law or in equity, of the obligor by filing notice of a child support lien with the Prothonotary or clerk of the court in which the claim, counterclaim, cross-claim, or other action or suit is pending and by sending a copy of the notice to the obligor. Upon the filing of the notice, the Prothonotary or clerk of the court shall mail a copy of the notice to the obligor and to all attorneys and insurance carriers of record, if known, each of whom is deemed to have received the notice 5 days after the Prothonotary or clerk mailed the notice.

b. Any person, firm, or corporation, including an insurance carrier, making any payment or settlement in full or partial satisfaction of any claim, counterclaim, cross-claim, or other action or suit after the receipt of the notice of lien is liable to the Director, as payee of the child support order, in an amount equal to the lesser of the payment or settlement or the child support arrears or retroactive support. The Director may enforce the child support lien in an action in the Family Court against any person, firm, or corporation, including an insurance carrier, making the payment or settlement.

(3) Cause a lien for arrears or retroactive support to be placed upon any demand or cause of action for negligence or personal injury of the obligor by sending written notice of a child support lien to the obligor, to the party or parties alleged to be liable to the obligor, if known, and to their attorneys of record, if known. The notice must also instruct the party to whom it is directed to deliver a copy of the notice to the party’s insurance carrier, if any. The lien described in this paragraph (g)(3) attaches to any payment or settlement, after deducting expenses of recovery and attorneys’ fees, made more than 5 days after the notice is mailed. Any person, firm, or corporation, including an insurance carrier, making any payment or settlement in full or partial satisfaction of any claim, counterclaim, cross-claim, or other action or suit after the receipt of the notice of lien is liable to the Director, as payee of the child support order, in an amount equal to the lesser of the payment or settlement or the child support arrears or retroactive support. The Director may enforce the child support lien in an action in the Family Court against any person, firm, or corporation, including an insurance carrier, making the payment or settlement.

(4) Cause a lien for arrears or retroactive support or an income withholding order to be placed upon any workers’ compensation benefits payable to the obligor by filing notice of a child support lien with the Secretary of the Industrial Accident Board and by sending a written copy of the notice to the obligor. Upon the filing of the notice, the Secretary of the Industrial Accident Board shall mail a copy of the notice to the obligor and to all attorneys and insurance carriers of record, each of whom is deemed to have received the notice 5 days after the date of mailing by the Secretary. The lien described in this paragraph (g)(4) attaches to any Industrial Accident Board award or any payment or settlement, after deducting expenses or recovery and attorneys’ fees, made more than 5 days after the Secretary of the Industrial Accident Board mailed the notice. The lien described in this paragraph (g)(4) does not take priority over liens created by § 2363 of Title 19. Any person, firm, or corporation, including an insurance carrier, making any payment or settlement in full or partial satisfaction of any claim, counterclaim, cross-claim, or other action or suit after the receipt of the notice of lien is liable to the Director, as payee of the child support order, in an amount equal to the lesser of the payment or settlement or the child support arrears or retroactive support. The Director may enforce the child support lien in an action in the Family Court against any person, firm, or corporation, including an insurance carrier, making the payment or settlement. This paragraph (g)(4) does not apply to periodic workers’ compensation payments from which child support is paid by income attachment under § 513(b) of this title.

(5) Notwithstanding the provision of §§ 4733 and 4735 of Title 10 to the contrary, cause a lien for arrears or retroactive support to be perfected against real property by filing a child support lien notice with the Prothonotary in the county where the lien is sought to be filed. Upon the filing of the child support lien notice, the Prothonotary shall date and index the child support lien as a judgment and mail the obligor a copy of the notice by certified or registered mail. The filing of the child support lien notice constitutes notice to all persons who are charged with notice of matters filed with the Prothonotary.

(6) Cause a lien for arrears or retroactive support to be perfected against accounts held by a financial institution by serving a notice of child support lien and notice of levy on said institution. Within 20 days after the date it receives the notice, the institution shall satisfy the lien by paying the amount of the lien to the Director of the Division of Child Support Services, as payee of the child support order, with any goods, chattels, rights, credits, money, or effects of the obligor in the institution’s custody, possession, or control.

(7) Cause a lien for arrears or retroactive support to be perfected against designated nonexempt personal property of the obligor by filing a child support lien notice with the Prothonotary. The child support lien notice must describe the designated personal property against which it is perfected. Personal property subject to the child support lien includes lump sum payments from a state or local agency, including unemployment compensation and other benefits, and public and private retirement funds, subject to § 514 of the Retirement Income Security Act of 1974 [29 U.S.C. § 1144].

(h) For the purposes of this section, a child support lien notice must contain all of the following:

(1) The docket number or case number and identity of the court or administrative agency that entered the child support order.

(2) The name, address and, if known, the social security number of the obligor.

(3) The name and address of the obligee, unless protected from disclosure by a court or administrative order or finding.

(4) The amount of arrears or retroactive support as of a specified date.

(5) The name, address, and phone number of the public entity or individual to contact for the obligor’s current payment record and past-due arrearage.

(6) The name and address of the person or agency to whom the payment of arrears and retroactive support must be made.

(i) The Division of Child Support Services shall send timely written notice to the obligor of action taken to perfect a child support lien, execute a levy, or seize the property. The notice shall specify the amount due, the steps to be followed to release the property so placed under lien, levied upon or seized and the time period within which to respond to such notice, and shall include the name of the court or administrative agency which entered the child support order.

(1) The obligor may request an administrative review by filing a written request with the Division of Child Support Services within 20 days from the date the notice of child support lien was mailed. If the obligor files a timely written request for an administrative review, the Division shall conduct the review within a reasonable time of such request and shall not dispose of the subject property before the review is complete. The only issues to be addressed at the review hearing are whether the obligor is the person named in the child support order from which the lien arises and whether any child support payment or installment is past due. The records of the Division of Child Support Services shall be presumptive of the amount in arrears and of the obligor’s payment history. Except as otherwise provided herein, all hearings under this section shall be in accordance with the provision of the Administrative Procedures Act, Chapter 101 of Title 29.

(2) The obligor may appeal a decision entered after an administrative hearing under this section to the Family Court. The appeal shall be filed within 30 days of the day the notice of decision was mailed. The appeal shall a de novo review by to the Family Court and shall be as provided in §§ 10102(4) and 10142 through 10145 of Title 29.

(j) The records of the Division of Child Support Services, including records transmitted electronically, are presumptive evidence of the amount of any lien for arrears or retroactive support. Any person, firm, or corporation, including an insurance carrier or a financial institution, who has received notice of any child support lien shall determine from the Division of Child Support Services the amount of unpaid arrears or retroactive support owed by the obligor as of the date such party makes any payment to which a lien under this section attaches.

(k) The Division of Child Support Services may file notice of a lien or release of a lien or may transmit accounting information regarding an obligor’s arrears and retroactive support by any means, including electronic means.

(l) Except as provided in paragraph (l)(2) of this section, a child support lien expires upon the termination of a current child support obligation and payment in full of any arrears and retroactive support, or upon release of the lien by the Division of Child Support Services in the case of an order being enforced under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), or by the obligee in a non-IV-D case.

(1) When all arrears and retroactive child support have been paid in full, the Division of Child Support Services, or the obligee in a non-IV-D case, shall enter satisfaction of such lien or judgment on the record in the office where the same is entered.

(2) The duration of a child support lien is 10 years from the date on which the notice of lien is properly served on the holder of property; provided, however, that such lien may be renewed for another 10 years by complying with § 4711 of Title 10. Expiration of the child support lien does not terminate the underlying child support order or judgment or liquidate any past due support or retroactive support.

(m) In any case where there has been a refusal or neglect to pay child support, regardless of whether a levy has been made, the Division of Child Support Services, in addition to any other remedies, may file a civil action to enforce the child support lien. The filing of a civil action shall not preclude the Division of Child Support Services from enforcing the child support order through the use of any administrative procedures permitted by federal or state law.

(n) The remedies provided in this section are in addition to any other remedies for the enforcement of a support order.

(o) In the case of a motor vehicle, a child support lien does not attach until the lien is noted on the certificate of title for such vehicle.

Legislative History

71 Del. Laws, c. 216, § 1 ; 80 Del. Laws, c. 234, § 17 ; 82 Del. Laws, c. 41, § 1