Child support enforcement -- Enforcing orders
By WORLDLawDirect [January 29th, 2011]
Handbook on Child Support Enforcement
U.S. Department of Health and Human Services (HHS), Administration for Children and Families (ACF), Office of Child Support Enforcement (OCSE), 370 L'Enfant Promenade, S.W., Washington, D.C. 20447 OCSE website
ENFORCING THE SUPPORT ORDER: ENFORCEMENT
A main objective of the Child Support Enforcement Program is to make sure that child support payments are made regularly and in the correct amount. While many noncustodial parents are involved in their children's lives and are willing to pay child support, lapses of payment do occur. When they do, a family's budget can be quickly and seriously threatened, and the anxiety the custodial parent feels can easily disrupt the family's life.
For this reason, Congress decided that immediate wage withholding should be included in all child support orders. (States must also apply withholding to sources of income other than wages.) For child support orders issued or modified through State CSE Programs, immediate wage withholding began November 1, 1990. Immediate wage withholding began January 1, 1994 for all initial orders which are not established through the CSE Program. The law allows for an exception to immediate wage withholding if the court (or administrative process) finds good cause, or if both parents agree to an alternative arrangement. In these cases, an arrearage equal to one month's payment will trigger withholding.
If the noncustodial parent has a regular job, wage withholding for child support can be treated like other forms of payroll deduction–income tax, social security, union dues, or any other required payment.
If payments are skipped or stop entirely, especially if the noncustodial parent is self-employed, works for cash or commissions, changes employment, or moves frequently, the CSE office will try to enforce the support order through other means.
Subject to due process safeguards, States have laws which allow them to use enforcement techniques such as State and Federal income tax offset, liens on real or personal property owned by the debtor, orders to withhold and deliver property that may satisfy the debt, or a seizure and sale of property with the proceeds from the sale applied to the support debt. These methods can be used by the CSE office without directly involving the courts.
The noncustodial parent refuses to pay child support, but owns a good deal of property in the county. Can a lien be issued on the property?
Yes. But you must remember a lien on property does not by itself result in the immediate collection of any money. It only prevents the owner from selling, transferring, or borrowing against the property until the child support debt is paid. However, the presence of a property lien may encourage the noncustodial parent to pay the past-due child support in order to retain clear title to the property. States are now required to give full faith and credit to liens issued by another State.
Is it possible to collect the support payments from personal property?
Under some State laws, the enforcement official can issue an order to withhold and deliver. The order is sent to the person, company, or institution that is holding property belonging to the debtor, such as a bank account, investments, or personal property. The holder of the property must deliver it either to the enforcement agency or court that issued the support order. Some States permit the property to be attached or seized and sold to pay the debt. Some States require noncustodial parents with a poor payment history to pledge property as a guarantee of payment. Non-payment results in forfeiture of the property.
I am working with a private attorney. Can she request wage withholding for my child support payments?
Yes. You can collect support through wage withholding if you use a private attorney rather than the CSE office. States must also apply withholding to other kinds of income in addition to wages, such as bonuses, commissions, retirement, rental or interest income.
Can I have the wage withholding applied to my existing child support order?
Yes, you can apply for the wage withholding through your local CSE office or your attorney. Though there are limits on how much of a person's check can be withheld, wage withholding can be used for both ongoing support and arrearages. Ask the CSE agency how this can be done.
Why can't my attorney work on my child support problem while I am receiving services from the child support program?
Your attorney can work with the child support program. For best results, they should coordinate their efforts to prevent duplication of services and conflicting enforcement decisions.
My child's mother works for a big company and has moved several times in her job. Can wage withholding work in this case?
Yes. States must recognize the wage withholding orders from other States, and continue the wage withholding as ordered, without regard to where the noncustodial parent or the custodial parent and children live.
My ex-husband has a good job and is willing to have the payments deducted from his paycheck, but his employer won't do it. What can I do?
Under Federal law, an employer must withhold the support if ordered to, or if the noncustodial parent requests it. If you run into problems with an employer, seek the assistance of your CSE office.
The children's father works irregularly and is paid in cash. Wage withholding won't work for me. What will?
Automatic billing, telephone reminders, and delinquency notices from your CSE office might convince him to make regular payments. Other techniques, such as property attachment, credit bureau reporting, tax refund offset, and liens might work for the arrearages. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) requires States to enact legislation to allow suspending or revoking drivers, professional, occupational and recreational licenses if an arrearage develops. If none of these is successful, your enforcement office can take the case to court for stronger enforcement methods.
My ex-wife has her own computer programming service. How can the CSE office find out how much she earns, and how can they collect the money?
The CSE office has access to information from the Internal Revenue Service to determine her income and assets. This information will help to set the support order amount.
Cases involving self-employed noncustodial parents can be the most challenging to work, and often take more time and effort. If it is not possible to arrange for an allotment or withholding, it may be possible to secure liens on her payments from regular clients or to garnish her bank account. If her business depends on having a license, she may make arrangements to pay rather than risk losing her license. Knowing that arrears will be reported to a credit bureau may give her a strong incentive to comply with the order. Provide your caseworker with as much information as you can about the business and her clients.
My children's father owns a cross-country moving van and a nice home. Why won't the child support office put a lien on either one?
Most States will not put a lien on a primary residence or attach property which a person needs to make a living. Talk to your caseworker about what kinds of property are available for liens and attachment in your State.
My ex-spouse is in the Army. How do I go about having child support payments deducted from a paycheck? And can I get medical coverage for my child?
Members of the military are subject to the same wage withholding requirements as other public or private employees. Federal garnishment procedures should be used in most instances, although use of military involuntary allotments is sometimes more appropriate. If a service member is not meeting a support obligation, a wage withholding order can be sent to the Defense Finance and Accounting Service (DFAS) Center in Cleveland, Ohio. Ask your CSE office for information on how to start this action.
To get medical coverage for a child of a military member, the child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS).
My children's father retired from the Navy when he was only 40, just before our divorce. Can his military retirement check be garnished for back child support?
Yes, it is possible to garnish the income of retired members of the military. With the assistance of your caseworker or lawyer, you can get a garnishment order from the court and send it with a certified copy of your child support order to DFAS (as above). Your local enforcement office can tell you the exact procedures and follow through on your behalf.
The children's mother works for the Federal government. She was recently transferred and stopped making payments. What do I have to do to get them started again?
All Federal employees are subject to wage withholding, and there is a central payment office for each Department, so moves within the Department should not affect a wage withholding order. If you do not have a formal support order, ask a child support office or an attorney about establishing one. If you have a child support order, your CSE office or attorney can help you to secure payments by wage withholding. If she has moved to a different Department, the Federal Parent Locator Service (FPLS) can provide her new location.
Can past-due child support be taken from the State income tax refund?
Under Federal law, all States with State income tax must offset State income tax refunds for past-due support owed to families, and to States for cash assistance they have provided.
How does the non-paying parent find out that his or her State tax refund will be taken?
The State must notify the noncustodial parent in advance of taking the action. The notice specifies the amount owed in arrears and the amount to be offset. It also tells whom to contact if the person wants to contest the offset.
Can Federal income tax refunds be offset the same way?
Yes, States can request an offset of Federal income tax refunds for past-due support of over $500 owed on behalf of minor children not receiving cash assistance as well as over $150 owed to States that have provided assistance.
Doesn't the Internal Revenue Service have another method it can use to help us get the support owed?
Yes, your caseworker may be able to make a request for use of the IRS "full collection" technique. Under certain conditions, the Internal Revenue Service can attach a parent's income and other assets for child support payments. The CSE agency can submit the request when the amount owed is over $750 and there is good evidence that the obligated parent has assets that can be tapped for collection. Contact your caseworker for more information.
The children's father lost his job and is collecting unemployment compensation. Can child support payments be deducted and sent to me?
Yes. Unemployment compensation, and other State and Federal benefits can be tapped for child support. Ask your caseworker about the procedures, and make sure you tell your caseworker immediately if you learn about changes in the father's employment situation.
By my own calculation, my ex owes me $3,475 in past due child support. Can the enforcement agency try to collect it for me?
If this support was owed before the CSE office became involved in your case, the CSE office will have to verify the amount owed, and may have to present the documentation to a court before it can start collection procedures. While it is doing this, the agency can try to collect support payments for current months.
I heard that my children's father is buying a very expensive car. He owes over $5,000 in back support. Can the credit agency be told this?
Yes. By Federal law, the CSE office must periodically report the amount of past-due child support to credit reporting agencies. Consult your caseworker for more information.
The other parent does not work regularly and keeps falling behind in child support payments. Is there any way the court can establish regular payment?
As mentioned before, property liens and attachments might work. In certain cases Federal law also authorizes that the parent be required to post security, bond, or other guarantee to cover support obligations. These may be in the form of money or property. Ask your enforcement caseworker if these might be applied to your case.
My ex-wife has declared bankruptcy and says she doesn't have to pay child support. Is that true?
Child support payments generally cannot be discharged in bankruptcy. This means that the parent who owed child support cannot escape this duty by filing for bankruptcy. As of October 1994, bankruptcies do not act as a stay, or hold, on actions to establish paternity or to establish or modify child support obligations. The relationship between child support and bankruptcy is complex, and you may need the help of someone familiar with bankruptcy law. Ask your caseworker how the CSE office can help.
My daughter's father says that since he gives her gifts and money he does not have to pay child support.
Courts generally will not allow gifts to a child to take the place of child support, and require that child support payments are carried out as ordered by the child support agreement. In some cases, if the voluntary payment is larger than a normal gift would be, a court may decide to credit the payment as a child support payment.
Will the Federal Government step in to enforce a difficult child support case?
No. State and local offices are responsible for establishing paternity and establishing and enforcing child support orders. The Federal Government tries to make sure that States use appropriate enforcement techniques. It pays much of the cost of the program, issues policies, offers technical assistance, and reviews State programs for compliance with Federal requirements. (However,see Interstate Enforcement below.)
The child support office is not enforcing my case. Can I take it to a Federal Court?
If your caseworker and State CSE office have had no response to their requests for enforcement in another jurisdiction, it is possible for the case to be heard by a Federal court. This is not done often, and the decision to use a Federal court will be made by the Federal Regional Office of Child Support Enforcement at the request of your caseworker and the State enforcement office. If you are not satisfied with the services you are receiving in your local CSE office, you may ask your State CSE Agency for help.