Due to recent changes in the law, it has become much easier to collect back child support from a deceased deadbeat’s estate. Here’s how to do it profitably without running afoul of the rules of professional conduct.
Yesterday, for the first time in over a decade, I found myself in probate court. The goal: collect child support that had accrued over a nine year period between 1973 and 1982 from the estate of a man who, according to my client, had disappeared even before their divorce and remained unlocated until his death. In the interim, he had accumulated another wife (an ex-wife at the time of his death), more children and a nice bit of real estate. When she learned of his death, she made a claim for the back child support. After the estate denied her claim as untimely, she ended up at my office seeking help.
Due to the recent abolition of laches as a defense to child support collection in Ables v. Gladden, 378 S.C. 558, 664 S.E.2d 442 (2008), I thought her claim was relatively strong–strong enough I was willing to handle it on a contingency fee basis, even though I would need to split the fee with an attorney conversant in probate court procedure. Shirrese B. Brockington, whose practice emphasizes probate work, agreed to be my co-counsel. By the time settlement negotiations–involving four attorneys with 95 years of combined experience and combined billing rates just south of $1,000.00 per hour–concluded with a signed order, the results achieved were clearly worth the risk and effort. I would gladly do this again in a case with a similar fact pattern.
Any attorney seeking to collect back child support or alimony from the estate of a deceased obligor needs to be familiar with a few statutes, cases, and rules of professional conduct.
Appeal of Brown, 288 S.C. 530, 343 S.E.2d 649 (Ct.App.1986) indicates that the probate court is the proper forum to collect past due child or spousal support from a deceased obligor. It also supports the proposition that one can collect past due support even if that support obligation is more than ten years old (S.C. Code Ann. § 15-39-30 generally requires that judgments be executed within ten years).
Further, post judgment interest is allowed on each child support or alimony installment from the date the particular installment matured. Thornton v. Thornton, 328 S.C. 96, 492 S.E.2d 86, 96 (1997). S.C. Code Ann. § 34-31-20 sets the post-judgment interest rate, which is currently 7.25% compounded annually.
Finally, Rule 1.5(d)(1) of the South Carolina Rules of Professional Conduct allows an attorney to represent a party to collect past due child support or alimony on a contingency fee basis. Any contingency fee agreement must be in writing and signed by the client. Rule 1.5(c), SRRPC. If two attorneys who are not in the same firm intend to jointly represent the party seeking to collect back support, the fee splitting arrangement: must be in proportion to the services performed by each lawyer or each lawyer must assume joint responsibility for the representation; must be agreed to by the client, including the share each lawyer will receive, and confirmed by the client in writing; and must be reasonable. Rule 1.5(e), SRRPC. This sort of representation requires familiarity with substantive family law and procedural probate law. Unless an attorney is familiar with both of these areas of the law, co-counsel is advisable.
Using techniques discussed in greater detail in Contingency Fees and Interest in Collecting Back Child Support and Alimony, we were able to take a past due child support obligation just under $15,000.00 and turn it into a claim for a bit over $80,000.[1] We settled the claim for a bit more than twice the amount of the back support claim. Even after deducting the one-third contingency fee, our client was quite happy, as she ended up with more money than her original judgment. Even splitting our fee, co-counsel and I were satisfied with amount in relation to the level of work involved.
Anyone owed past due alimony or child support who learns of the obligor’s death is welcome to contact me about using these techniques to collect that support.
Finally, I wish to thank co-counsel, Shirrese B. Brockington for her wonderful collaboration in this successful result, Dave McKeown, one of the Charleston County family court clerks, for his able assistance in scouring microfilm to locate the old case files, and Melissa F. Brown, for thinking of me when my client initally contacted her about collecting this support.
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[1] That was based on 14% simple interest. Had the interest been compound at 14%, the claim would have been over $1,000,000. Albert Einstein was onto something when he said “The most powerful force in the universe is compound interest.”
Great article Greg. Timely as well for me. I have a meeting next week on this.