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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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My children and I are living off of my child support but are

Customer Question

My children and I are living off of my child support but are in the middle of a legal battle with my ex. If the court rules that I have to pay some of the legal fees can the legal firm take money from my child support or require me to sell or refinance my home? I live in Indiana.
Submitted: 5 months ago.
Category: Family Law
Expert:  LegalGems replied 5 months ago.

Is there a current order re: who is responsible for attorney fees?

Customer: replied 5 months ago.
No, that is to be determined during this court proceeding. He stole from me when I was moving out of our home and is not following a negotiated signed agreement concerning custody, so I had no choice but to take him back to court.
Customer: replied 5 months ago.
He and his attorney claim I am just trying to waste his money. He is a very wealthy doctor.
Expert:  LegalGems replied 5 months ago.

OK thank you;

The relevant statute is 33-43-4-1: An attorney practicing law in a court of record in Indiana may hold a lien for the attorney's fees on a judgment rendered in favor of a person employing the attorney to obtain the judgment.

Per 33-43-4-2, there is a time frame for this process- not later than 60 days after judgment is rendered.

So case law has been in conflict over the past several decades; for example the Turner v. Woolworth case as far back as 1917 was opposite of the Therous case (1988)

The most recent case (http://www.nycourts.gov/reporter/3dseries/2013/2013_23241.htm) is Piccarreto v. More (2013) which does allow for such charging liens.

However, one should ensure that the attorney has made the proper motion to request the other party to pay attorney fees- if failing to do so will affect the children that will help bolster one's argument.

Further questions? Please post here to continue the chat. Satisfied? Kindly rate positively so I receive credit for assisting you.(no additional charges are incurred). Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.
Expert:  LegalGems replied 5 months ago.

As for stealing - the courts will generally order the wrongdoing spouse to reimburse the spouse for any money wrongfully taken. And for parties that breach agreements, normally the court will order attorney fees to be paid by the breaching party as a sanction. So if one has not discussed with the attorney a motion requesting attorney fees, that would be a timely motion to make.

Customer: replied 5 months ago.
I understand they could put a lien but can they garnish my child support or force my to sell or refinance my home?
Expert:  LegalGems replied 5 months ago.

The property lien is not like a mechanic's lien- it is a passive lien so they cannot force foreclosure (in re Wilson, in re Makames). And while historically the courts have not allowed an attorney to access child support, since the 2013 Piccarreto case it appears that support orders can be garnished, which is a turn from the past holdings.

Customer: replied 5 months ago.
Thank you
Expert:  LegalGems replied 5 months ago.

You are most welcome.

Expert:  LegalGems replied 5 months ago.

This case very clearly states that the attorney must file the lien within 60 days after the judgment is entered- so that likely be interpreted to mean that a child support order (which is not a final judgment) would not qualify -so if the support order is not reduced to judgment (and often they are not because they are modifiable), or if the notice is filed before judgment is rendered, then it would presumably be invalid.

http://www.in.gov/judiciary/opinions/pdf/02181502jss.pdf

Expert:  LegalGems replied 5 months ago.

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Thank you!

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