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Child SupportDivorcePost Divorce IssuesNew York Attorney Retainers May Be Restrained to Pay Support Arrears

October 6, 2015


Need a source to collect maintenance arrears- here is a novel place,  your ex’s  attorney retainer account.

An upstate court allowed a wife to collect maintenance arrears she was owed from the retainer paid to the husband’s attorney.

The wife had obtained several money judgments against the husband due to his failure to pay support.   When the wife sought to garnish the husband’s IRA to satisfy the judgment, the husband retained and paid an attorney to oppose the wife.  Seeing an additional source of collection for her judgments, the wife cleverly restrained the retainer paid to the husband’s attorney.

While the husband (and, no doubt, his lawyer, who would have to surrender his retainer to satisfy his client’ obligation) argued the husband retained no interest in the money paid to the attorney, the court did not “buy it.“   After a comprehensive discussion regarding the various types of retainers paid to attorneys, the court concluded that the retainer was the property of the husband and available to satisfy the judgments for arrears.

Whether the court issued this order as a punishment because the husband was avoiding his support obligation but was able to pay his attorneys to fight the wife or simply wanted to end what appears to very litigious enforcement proceedings, the precedent stands.   Certain types of retainers paid to attorneys can be used to pay the client’s support arrears.

Attorneys should change their retainers accordingly if the represent spouses who owe maintenance and support arrears

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