Question: My ex-husband has refused to pay child support for the past six years. During this time I have run up my credit card balances, put a second equity mortgage on my house, and worked two and three jobs just to make ends meet for me and my two boys. My ex has stopped working, and although he has served some time in jail for not paying, he gets out and still does not pay.

His mother, who told me she had enough of him too, gave me some gifts along the way to help with my payments, but also gave her son – my ex -- some money to help him keep up his car insurance and rent for an apartment he shares with another deadbeat. He was more than $100,000 behind in his child support when his mother died earlier this year.

She left each of my children – her only grandchildren -- $25,000 each in trust for their college. At seven and nine, this is a long way off. She left everything else – more than $350,000 -- to my ex in another trust that restricted how he could get funds. At his death, anything left goes to my children. But that restriction, according to the lawyer who read the trust for me, will keep me from getting the past due and ongoing support my children need. I am at my wit’s end. My ex has $350,000 in trust that he can get from his trustee, and my children can’t. There has to be a way to break the trust.

Answer: We assume the trust contains what is called a “spendthrift provision” -- that is, language designed to keep creditors from reaching trust assets. Generally in these types of trusts, the trustee has the discretion to distribute to your ex-husband so much of the net income or principal, or both, as the trustee deems appropriate – or to distribute nothing.

In most states, courts won’t allow creditors like you and your children to enforce judgments against these trusts or to garnish child support obligations where, as here, the trust was created in good faith by a person other than the beneficiary who owes the money. The rationale behind this prohibition is that the owner of property – here, your mother-in-law – as the settlor of a trust, has the right to dispose of her assets as she pleases and to place any restriction she may desire on the distribution. Here, since your ex-husband’s mother created the trust, in most states it is unlikely that trust funds could be reached to satisfy an outstanding child support order. Of course, if and when any funds are distributed to your ex from the trust, those funds could be attached.

However, some states have taken a different view of public policy when it comes to paying child support. In California, for example, the legislature passed a law allowing judges to require the trustee to pay child support payments, both past due and future, under certain circumstances. Therefore, where, as here, a former husband has acted with patent disregard of his obligation to support his children, the courts in those states would not allow a deadbeat parent to avoid his or her obligation to pay support by hiding behind a spendthrift provision in a trust created by a parent or other benefactor.

In today’s tight budgetary times, child support obligations should be honored and enforced by legislative enactment. We urge state legislatures to enact laws similar to those in California to keep children and dependent spouses off the welfare rolls.