Divorce judgment for divorce had been entered in 1983. It included monthly child support to be paid by husband. Husband died in 2008.
In 2012, wife filed a petition for confirmation of lien, sale of real estate, and entry of a QDRO (against his pension). She alleged that there were child support arrearages and interest totaling nearly $66,000.
Wife claimed that there was an existing lien in that amount against the assets of the Estate. This was by operation of section 505(d) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(d). This law states that a lien arises by operation of law against the real property and personal property of the noncustodial parent. For each installment of overdue
[child] support owed by the noncustodial parent.
The trial court granted the wife’s claims against husband. Husband’s estate appealed. The Appellate court reversed the trial court.
Section 510(e) of the Marriage Act subjects to the Probate Act all claims for child support. This includes those based on arrearages existing when husband died.
A support arrearage does automatically create a lien against the payor’s property. Wife was correct about that. However, the existence of a lien does not take away the need to file a claim under the Probate Act against the payor’s estate.
Wife’s claim was time-barred. This is per section 5/18-12 of the Probate Act. Wife had needed to file under the Probate Act in probate court within two years after husband’s death. She did not do that.
In re Marriage of Ross, 2015 IL App (2d) 130961
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