Barrett Henry is a Broker Associate at REMAX Collective with 23+ years of Florida real estate experience. He helps homeowners throughout all 67 Florida counties navigate complex foreclosure situations, including those involving multiple liens. Direct service in the Tampa Bay area; referral connections statewide.
When a Florida homeowner faces foreclosure, the mortgage is usually the primary concern. But if a child support arrearage judgment has been recorded against the property, a second legal claim now exists on the same real estate. Understanding how child support liens interact with mortgage foreclosure -- and how they affect your options -- is essential for homeowners navigating this situation.
How Child Support Liens Are Created in Florida
In Florida, unpaid child support does not automatically become a real property lien. A lien attaches to real property when a child support judgment or arrears order is recorded in the public records of the county where the property is located. This can happen in two ways:
- Circuit court judgment: When a court enters a judgment for child support arrears, the prevailing party records a certified copy with the county clerk, creating a lien under F.S. § 61.14.
- DOR administrative lien: The Florida Department of Revenue can record administrative liens statewide under F.S. § 409.2557 without filing a separate lawsuit in each county.
Once recorded, the child support lien attaches to all real property the obligor owns in that county and becomes part of the chain of title.
Lien Priority: Mortgage vs. Child Support Lien
Florida follows the "first in time, first in right" rule for lien priority. The recording dates determine which lien holder gets paid first from foreclosure proceeds:
- If the mortgage was recorded first: The mortgage has senior priority. The mortgage foreclosure extinguishes the child support lien, but the child support lien holder must be named in the foreclosure lawsuit and served. Any surplus funds after the mortgage judgment is satisfied belong to junior lienholders (including the child support obligee) before they go to the former homeowner.
- If the child support lien was recorded first: The child support lien has senior priority. A mortgage foreclosure by a junior lienholder does not extinguish the senior child support lien -- the buyer at auction takes the property subject to it, which significantly affects bidding and title.
In most Florida foreclosure cases, the mortgage is recorded at the time of purchase, which predates any child support arrearage judgment. So the mortgage typically holds senior priority.
What Happens to the Child Support Lien in a Mortgage Foreclosure?
When the senior mortgage lender forecloses, the child support lien holder must be named as a defendant in the foreclosure lawsuit. Under Florida Rule of Civil Procedure 1.260, all parties with an interest in the property must be joined. If the child support obligee is properly served and the foreclosure is completed, the child support lien is extinguished as to the property (though the personal obligation continues).
If the foreclosure sale generates surplus funds -- that is, a third-party bidder pays more than the total judgment amount -- the child support obligee can file a claim for those funds within 60 days under F.S. § 45.032. The child support lien holder's claim is generally superior to the former homeowner's claim to surplus funds.
Learn more about how surplus funds work in our guide: Florida foreclosure surplus funds -- how to claim what you're owed.
Child Support Liens and Selling Before Foreclosure
If you are trying to sell your home before the foreclosure auction, a child support lien must be satisfied or released before the buyer can receive clear title. A title company conducting a title search will identify the lien and require it to be paid at closing.
If you have enough equity, the child support arrearage (plus any mortgage payoff) can be paid from the sale proceeds. If the sale proceeds are insufficient to cover both the mortgage and the child support lien, you will need to negotiate:
- A reduced payoff with the child support obligee or their attorney
- A payment plan with the Florida Department of Revenue if they hold the lien
- A short sale with both the mortgage lender and child support obligee approving reduced payoffs
Use our equity estimator to determine whether you have enough equity to pay both liens and still net proceeds, or whether a short sale or other alternative is more appropriate.
Florida Homestead Exemption Does Not Protect Against Child Support Liens
Florida's homestead exemption is one of the strongest in the country, protecting primary residences from most judgment creditor liens. However, child support is a recognized exception under Article X, Section 4 of the Florida Constitution. A recorded child support lien can be enforced against a homestead property -- the exemption does not apply.
This is an important distinction from most other judgment liens (credit cards, personal loans, lawsuit judgments) which cannot attach to a homestead while the owner is living there. Learn more about how Florida's homestead exemption interacts with foreclosure.
Your Practical Options When Both Liens Exist
If you have both a delinquent mortgage and a child support lien, here are the practical paths forward:
- Loan modification: Modifying your mortgage addresses the primary delinquency and may allow you to keep the home. The child support obligation must still be addressed separately.
- Sell before foreclosure: If you have equity, a pre-foreclosure sale can pay off both liens and preserve your credit record better than a completed foreclosure.
- Short sale: Requires negotiating with both the mortgage lender and the child support obligee for reduced payoffs. More complex but achievable.
- Deed in lieu: Deed in lieu of foreclosure requires the mortgage lender to accept the property -- they will typically require all junior liens to be released first, so the child support lien must be addressed.
- Chapter 13 bankruptcy: Chapter 13 can address mortgage arrears through a repayment plan. Note that child support arrears are priority debts in bankruptcy and must be paid in full through the plan.
Review our complete guide to stopping foreclosure in Florida for all available options, and use the foreclosure checklist to track deadlines.
Facing foreclosure with a child support lien? Get free help today -- no cost, no obligation. Barrett Henry helps homeowners in all 67 Florida counties.
