The child support lien

Law Lessons from Smiley v. Thomas, __ N.J. Super. __ (Law Div. 2017), Atlantic Cty.(Savio, J.) Docket No. L-2722-15, October 11, 2016:

The child support lien, created by operation of N.J.S.A. 2A:56.23b, has “ [p]riority over all other levies . . . against the net proceeds of any settlement negotiated . . . subsequent to filing of a lawsuit . . . unless otherwise provided by the Superior Court . . . .” The statute requires a child support judgment search to determine if a plaintiff is obliged to pay a child support obligation before the “net proceeds” of a settlement of a civil suit can be distributed to plaintiff. N.J.S.A. 2A:56-23b. If plaintiff has an outstanding child support obligation, the statute mandates the payment of that obligation out of the net proceeds of the settlement of the civil litigation. N.J.S.A. 2A:17-56.23b(b)(2). The net proceeds of the settlement are defined in N.J.S.A. 2A:17-56.23b(a) as “[a]ny amount of money, in excess of $2,000, payable to the prevailing party . . . [in civil litigation] . . . after attorney’s fees, witnesses fees, court costs, . . . and other costs related to the lawsuit . . . are deducted from the . . . award . . . .”

In interpreting N.J.S.A. 2A:17-56.23b, the Appellate Division opined that only the amount left of the plaintiff’s settlement after litigation costs that exceeds $2000 is subject to the lien created by N.J.S.A. 2A:17-56.23(b). Simpkins v. Saiani, 356 N.J. Super. 26, 28 (App. Div. 2002). Furthermore, if the net proceeds are less than the amount of the child support judgment, then the entire amount of the “net proceeds” sans $2000 shall be paid to the Probation Division as “partial” satisfaction of the judgment. Id. at 30.

“[O]ne of the fundamental concepts in American society is that parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent.” Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004) (citing Dunbar v. Dunbar, 190 U.S. 340, 351, 23 S. Ct. 757, 761, 47 L. Ed. 1084 (1903)); see also Cumberland Cty. Bd. of Soc. Servs. v. W.J.P., 333 N.J. Super. 362, 365 (App. Div. 2000) (noting that “[a]t common law, parents had an absolute duty to support their children”). The obligation to provide child support “is engrained into our common law, statutory, and rule-based jurisprudence.” Burns, supra, 367 N.J. Super. at 39. By statute, parents are presumptively required to provide for the financial support of their unemancipated children. N.J.S.A. 2A:34-23(a). It is well established that a parent cannot waive a child’s right to child support because the right belongs to the child. Gotlib v. Gotlib, 399 N.J. Super. 295, 304-06 (App. Div. 2008). The right to child support belongs to the child and the right to receive support belongs to the children, not the custodial parent. Pascale v. Pascale, 140 N.J. 583, 591 (1995); Kopak v. Polzer, 4 N.J. 327, 332 (1950); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003); L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2001); Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994); Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).

Parties are permitted to fashion an agreement contrary to prevailing law as long as they do not bargain away the child’s support. Ordukaya v. Brown, 357 N.J. Super. 231, 239-41 (App. Div. 2003). The parties may agree to deviate below the standards for child support in the Guidelines, but not if the children will be prejudiced. Monmouth Cty. Div. of Soc. Servs. for D.M. v. G.D.M., 308 N.J. Super. 83, 95 (Ch. Div. 1997) (court vacated a consent order relieving the father of child support in exchange for his termination of parental rights).

When examining the policy behind the child support lien statute, it is quite evident that the statute was enacted to attempt to ensure that plaintiffs in civil suits, among others, who are delinquent in their child support obligations, are required to satisfy the delinquent child support obligation out of the payment on account of any settlement above $2000 after the payment of attorney’s fees and costs. N.J.S.A. 2A:17-56.23b(a). The operation of the statute is not limited to judgments or settlements of personal injury litigation governed by Rule 1:21-7(c), but the lien is imposed on the net proceeds of any settlement or judgment of any civil litigation.

Hypothetically, a plaintiff’s counsel is not precluded from agreeing with plaintiff to simply reduce the fee and give plaintiff the reduction without judicial approval. However, if plaintiff’s counsel reduces the fee and pays the money to plaintiff without judicial approval, plaintiff’s counsel assumes the risk that the Probation Division or one or the other mothers of plaintiff’s children may contend that plaintiff’s counsel delivered money to plaintiff that was the subject of a statutory lien and therefore, plaintiff’s attorney is obligated by statute to pay the net proceeds to the Probation Division or to the mothers of plaintiff’s children.

The legislature has declared in adopting N.J.S.A. 2A:17-56.23b that money received as compensation for a civil suit must be used to satisfy a judgment debtors obligation for child support even before the injured plaintiff is compensated for his pain and suffering.

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