Question: My former husband was required by court order to pay $175 weekly to support our two children until each reached age 18 or completed school. Despite the order, he was continuously in arrears. At his unexpected death in January, he owed my children, now 16 and 14, more than $32,000 in past due support.

I was told that all I could do was to make a claim against his estate, but when I did, I learned that he had given away what had been our home to his second wife, had changed his bank accounts so that she received them automatically, made her beneficiary of his life insurance and IRA, and left only some personal property, a car, and a small savings account in his estate. I have gone to hearing after hearing and learned that my children were not even preferred creditors -- meaning I will not collect anything. To add insult to injury, the probate judge asked me why I was upset since I would be getting Social Security to take care of my children now that “the breadwinner” was gone. I see this as a real flaw in the legal system. Is there anything I can do to collect my children’s money given the fact that it’s obvious that he transferred his assets to avoid supporting them? And Social Security does not cover college, I have learned.

Answer: While the exact answer to your question may very depending on the law of your state of residence, we believe there may be a number of potential avenues open to you.
First of all, if you live in a state where past-due installments of child support automatically become money judgments on the date the payments are due but not paid, you may hold non-modifiable final money judgments that can be collected like any other judgment. In this event, you may well be a judgment creditor and move further up the food chain as far as priority is concerned.
Second, again depending on where you live, your former husband’s obligation to pay child support may continue past his death, depending on the contingencies stated in your court order. For example, if, as you say, your court order requires support until your children reach age 18 – which they are not – or until they complete school, but the order did not specifically terminate on the death of your former husband, past due support may still be accruing and may be a charge against his estate. If it is, you should not be required to assume the total financial burden of taking care of your children in these circumstances.

Third, if the support was a judgment and your former husband transferred assets to avoid a legal obligation, the transfers to his second wife may well be transfers to defraud your children as a creditor. If so, the gifts from your ex to his second wife may well be set aside. And, if the past due support payments were, in fact, judgments, your ex’s widow may have taken the transfers subject to these judgments -- making them collectible.

Because of the complexities involved, we suggest you seek qualified counsel and, while you and others similarly situated are at it, contact your state legislators and ask them to put more teeth into child support collection techniques when the breadwinner dies or, just as dangerously today, goes into bankruptcy.