Taxation & Estate Planning

Unpaid Child Support in Probate

By Joel A. Schoenmeyer

Over the past 10 or 20 years, Illinois has worked to make it easier for ex-spouses to collect unpaid child support. Two ways in which this is done:

1. Section 12-108 of the Illinois Code of Civil Procedure, which eliminates the statute of limitations for child support. ("Child support judgments... may be enforced at any time."); and

2. Sections 2-1303 and 12-109 of the Illinois Code of Civil Procedure, which indicate that interest judgments SHALL accrue at 9% per year.

You should view probate as another (and your last) bite at the apple if you have a claim against someone. So, a woman might sue her ex-husband's estate for unpaid child support if there's an unpaid balance at his death, even if the balance is from many years ago. How might that play out? From my experience, here are the issues that will arise:

-Is the claim in any way barred, by the statute of limitations or by another theory (like equitable estoppel or laches)? You would think that this is a moot point, given the language of 12-108 mentioned above, but that language was only added in 1997. Is it possible that unpaid child support from prior to that date cannot be collected? Unlikely. The closer issue involves unpaid child support that became barred prior to 1997 (when there was a 20-year statute of limitations on child support). My experience is that the court will still require payment from the decedent's estate.

-Is interest a sure thing? No it isn't, at least not in the 1st District of Illinois. Yes, there's "shall" language in 12-108. But there is a long line of cases -- including, most recently, the case of Illinois Department of Healthcare and Health Services v. Wiszowaty (913 N.E.2d 680), decided on August 14, 2009 -- in which courts have stated that judgments in divorce-related proceedings (including judgments relating to child support) are not subject to mandatory interest. Rather, interest is at the discretion of the judge (although, if granted, the interest must be paid as set forth in the statute).

Full post as published by Death and Taxes Blog on November 03, 2009 (boomark / email).