The judge ordered the other parent to pay your attorney’s fees. Months later, you still have not seen a dollar. If that parent owns a house, a family court judgment lien may be the tool that finally gets the bill paid.

Short answer: In South Carolina, a fee award becomes a lien on real estate once it is a final judgment and the Clerk of Court enters it in the Abstract of Judgments. The lien lasts ten years. In family court, however, the order itself usually has to tell the Clerk to do that.

Where the power to award attorney’s fees comes from

The family court can order one parent to pay the other’s legal fees. Under S.C. Code § 63-3-530(A)(38), "suit money, including attorney’s fees, may be assessed for or against a party" in any family court action. That covers more than divorce. It also reaches custody modification, visitation, and child support cases.

First, the judge decides whether a fee award is fair. E.D.M. v. T.A.M. lists four factors: each party’s ability to pay, the results each side obtained, the parties’ financial conditions, and the effect of the fee on each party’s standard of living. Next, the judge sets the amount. Here Glasscock v. Glasscock adds six more factors, including the difficulty of the case, the time spent, and customary fees in the area.

The judge must make findings on each factor. For that reason, the fee affidavit and testimony at your final hearing carry real weight. If you are still in the middle of a custody fight, our post on modifying custody and visitation in South Carolina explains how those cases unfold.

Why a fee award is not automatically a family court judgment lien

Many people assume a fee award attaches to the other parent’s house on its own. It does not. Under S.C. Code § 15-35-810, a final judgment becomes a lien on the debtor’s real estate in each county where it is entered in the abstract of judgments and indexed. The lien starts on that entry date and runs ten years from the date of judgment.

Family courts are courts of record, so their judgments qualify. The key word is "entered." In circuit court, clerks place money judgments on the judgment rolls as a matter of routine. Family court is different. Rule 2(a) of the South Carolina Rules of Family Court makes the civil rule that clerks rely on, Rule 78 of the Rules of Civil Procedure, inapplicable in domestic cases. The South Carolina Attorney General has also advised that family court orders go on the judgment rolls only when a statute requires it or the judge directs it.

In practice, then, the words of the final order do the work. A fee award that does not say "judgment" and does not direct the Clerk to enroll it may never become a lien at all.

What the final order should say

Ask your lawyer to put specific language in the proposed final order. A well-drafted order should:

• •State that the fee award is a final money judgment against the other party, in a stated dollar amount.
• •Direct the Clerk of Court to enter the judgment in the Abstract of Judgments.
• •List every version of the debtor’s name for indexing. Compound surnames are often indexed in more than one way, so "José García López" might appear as "López, José García." A title search under one spelling can miss a judgment filed under another.
• •Describe any real estate the debtor owns by street address and tax map number.
• •Award post-judgment interest under S.C. Code § 34-31-20(B).
• •Require that any unpaid balance be paid from the debtor’s net proceeds if the property is sold or refinanced.
• •Fold in earlier fee awards from the same case that are still unpaid, and credit the ones already paid.
• •Authorize you to docket a transcript of the judgment in the Court of Common Pleas.
• •Find that the fees were incurred, at least in part, for the children’s benefit.

That last finding may seem minor. Even so, it can matter a great deal later, as the bankruptcy section below explains.

After the judge signs: enrolling the judgment

A signed order is only the start. To turn it into a recorded lien, follow these steps:

• •Get the clerk-signed Form 4, Judgment in a Family Court Case, showing the date of entry.
• •Deliver a certified copy of the order to the Clerk of Court with a written request to enter it in the Abstract of Judgments.
• •Confirm the judgment is indexed under each name variation listed in the order.
• •If the debtor owns land in another county, docket a transcript of the judgment with that county’s clerk under S.C. Code § 15-35-540. A judgment entered in Berkeley County does not reach a lot in Charleston or Dorchester County until it is docketed there.
• •Calendar the ten-year expiration date, measured from the date of judgment.

How much is the lien worth?

Liens generally rank by the date they are recorded. A mortgage recorded years ago comes ahead of your judgment. Your lien is therefore only as valuable as the equity left after earlier mortgages and judgments. Our post on who gets the house in a South Carolina divorce covers how equity is measured.

Foreclosure is the biggest risk. If a lender files a foreclosure and records a lis pendens before your judgment is enrolled, the buyer at the sale can take the property free of your lien. In that case, you would be limited to any surplus money left after the sale, and you must file a claim in the foreclosure case to get it. That is why prompt enrollment matters.

A few other limits apply. Under S.C. Code § 15-35-820, the lien does not reach property the Constitution exempts. In addition, if you try to force a sale of the debtor’s home, he or she may claim the homestead exemption in S.C. Code § 15-41-30, an amount adjusted every even-numbered year.

Still, a junior lien has teeth. It must be paid off before the owner can sell or refinance with clear title. The lien also attaches to any other real estate the debtor owns, or later buys, in that county during the ten years.

Can you file a lis pendens during a custody case?

Usually not. A notice of pendency under S.C. Code § 15-11-10 is for "an action affecting the title to real property." A custody or visitation case does not affect title to anyone’s house. Filing one anyway could expose you to a slander-of-title claim. The safer path is to wait for the final order and enroll the judgment.

Collecting on the judgment

Once the judgment is enrolled, you have several ways to collect:

• •At closing. Send a payoff demand to the closing attorney when the property is sold or refinanced.
• •In family court. Under S.C. Code § 20-3-125, the attorney whose client won the fee award may petition the family court to enforce payment. A rule to show cause for contempt is another option. Our post on enforcing a visitation order walks through that process, and this post on discovery in contempt actions covers one wrinkle.
• •Through execution. S.C. Code § 15-39-30 allows executions on final judgments "at any time within ten years." However, the examination of a judgment debtor is ordered by a circuit judge. The cleaner route is to docket a transcript of the family court judgment in the Court of Common Pleas under § 15-35-540. Once docketed, it has the same force as a circuit court judgment.

One more point: the judgment belongs to you, the client, not to your lawyer. The order can, however, direct that payment go to the law firm’s trust account.

What if the other parent files bankruptcy or appeals?

Bankruptcy does not wipe out every debt. A "domestic support obligation" is not discharged under 11 U.S.C. § 523(a)(5), and a debtor cannot avoid a judicial lien that secures one. Whether a fee award counts as support depends on the facts. A finding that the fees were incurred for the children’s welfare makes that argument much stronger.

An appeal raises a separate issue. A final fee award is generally stayed while an appeal is pending. By contrast, § 63-3-530(A)(38) says a temporary fee award "must not be stayed by an appeal." Post-judgment interest keeps running in the meantime.

Frequently asked questions

Does a family court fee award automatically become a lien on real estate?

No. It becomes a lien only after it is a final judgment and the Clerk enters it in the Abstract of Judgments. In family court, the order should direct the Clerk to do this.

How long does a family court judgment lien last?

The lien lasts ten years from the date of judgment under S.C. Code § 15-35-810.

Does the judgment earn interest?

Yes. A money judgment draws interest at the prime rate plus four percentage points. The South Carolina Supreme Court confirms the rate each January.

Does the lien cover property in other counties?

Only in counties where the judgment, or a transcript of it, is entered and indexed. You can docket a transcript in any South Carolina county under § 15-35-540.

Can I put a lien on the other parent’s house while the custody case is still open?

Generally, no. A lis pendens is for cases that affect title to real property, and custody cases do not. The lien comes from the final judgment.

Talk to a Lowcountry family law attorney

A fee award only helps you if you can collect it. Klok Law Firm represents parents in custody, visitation, and support cases in Charleston, Berkeley, and Dorchester Counties. We draft final orders with collection in mind. Visit our family law practice in Mount Pleasant, or call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.