INCOME WITHHOLDING

CS 722P Delinquency Based Income Withholding

10/22/97 Revised 08/01

45 CFR 303.100; UCA 62A-11-403, 62A-11-404, 62A-11-405

 

Statutory Authority

 

Utah law found at UCA 62A-11-404 Office procedures for income withholding for orders issued or modified on or after October 13, 1990 states:
    “(1) With regard to obligees or obligors who are receiving IV-D services, each child support order issued or modified on or after October 13, 1990, subjects the income of an obligor to immediate income withholding as of the effective date of the order, regardless of whether a delinquency occurs unless:
     (a) the court or administrative body that entered the order finds that one of the parties has demonstrated good cause not to require immediate income withholding; or
     (b) a written agreement that provides an alternative arrangement is executed by the obligor and obligee, and by the office, if there is an assignment under Section 35A-3-108, and reviewed and entered in the record by the court or administrative body.
     (2) For purposes of this section:
     (a) "good cause" shall be based on, at a minimum:
     (i) a determination and explanation on the record by the court or administrative body that implementation of income withholding would not be in the best interest of the child; and
     (ii) proof of timely payment of any previously ordered support;
     (b) in determining "good cause," the court or administrative body may, in addition to any other requirement that it determines appropriate, consider whether the obligor has:
     (i) obtained a bond, deposited money in trust for the benefit of the dependent children, or otherwise made arrangements sufficient to guarantee child support payments for at least two months; and
     (ii) arranged to deposit all child support payments into a checking account belonging to the obligee or made arrangements insuring that a reliable and independent record of the date and place of child support payments will be maintained.
     (3) An exception from immediate income withholding shall be:
     (a) included in the court or administrative agency's child support order; and
     (b) negated without further administrative or judicial action:
     (i) upon a delinquency;
     (ii) upon the obligor's request; or
     (iii) if the office, based on internal procedures and standards, or a party requests immediate income withholding for a case in which the parties have entered into an alternative arrangement to immediate income withholding pursuant to Subsection (1)(b).
     (4) If an exception to immediate income withholding has been ordered on the basis of good cause under Subsection (1)(a), the office may commence income withholding under this part:
     (a) in accordance with Subsection (3)(b); or
     (b) if the administrative or judicial body that found good cause determines that circumstances no longer support that finding.
     (5) (a) A party may contest income withholding due to a mistake of fact by filing a written objection with the office within 15 days of the commencement of income withholding under Subsection (4).
     (b) If a party contests income withholding under Subsection (5)(a), the office shall proceed with the objection as it would an objection filed under Section 62A-11-405.
     (6) Income withholding implemented under this section is subject to termination under Section 62A-11-408.

     (7) (a) Income withholding under the order may be effective until the obligor no longer owes child support to the obligee.
     (b) Appropriate income withholding procedures apply to existing and future payors and all withheld income shall be submitted to the office.”

Utah law found at UCA 62A-11-405 Office procedures for income withholding for orders issued or modified before October 13, 1990 states:
    “(1) With regard to child support orders issued prior to October 13, 1990, and not otherwise modified after that date, and for which an obligor or obligee is receiving IV-D services, the office shall proceed to withhold income as a means of collecting child support if a delinquency occurs under the order, regardless of whether the relevant child support order includes authorization for income withholding.
     (2) Upon receipt of a verified statement or affidavit alleging that a delinquency has occurred, the office shall:
     (a) send notice to the payor for income withholding in accordance with Section 62A-11-406; and
     (b) send notice to the obligor under Section 62A-11-304.4 that includes:
     (i) a copy of the notice sent to the payor; and
     (ii) information regarding:
     (A) the commencement of income withholding; and
     (B) the opportunity to contest the withholding or the amount withheld due to mistake of fact by filing a written request for review under this section with the office within 15 days.
     (3) If the obligor contests the withholding, the office shall:
     (a) provide an opportunity for the obligor to provide documentation and, if necessary, to present evidence supporting the obligor's claim of mistake of fact;
     (b) decide whether income withholding shall continue;
     (c) notify the obligor of its decision and the obligor's right to appeal under Subsection (4); and
     (d) at the obligor's option, return, if in the office's possession, or credit toward the most current and future support obligations of the obligor any amount mistakenly withheld and, if the mistake is attributable to the office, interest at the legal rate.
     (4) (a) An obligor may appeal the office's decision to withhold income under Subsection (3)by filing an appeal with the district court within 30 days after service of the notice under Subsection (3)and immediately notifying the office in writing of the obligor's decision to appeal.
     (b) The office shall proceed with income withholding under this part during the appeal, but shall hold all funds it receives, except current child support, in a reserve account pending the court's decision on appeal. The funds, plus interest at the legal rate, shall be paid to the party determined by the court.
     (c) If an obligor appeals a decision of the office to a district court under Subsection (4)(a), the obligor shall provide to the obligee:
     (i) notice of the obligor's appeal; and
     (ii) a copy of any documents filed by the obligor upon the office in connection with the appeal.
     (5) An obligor's payment of overdue child support may not be the sole basis for not implementing income withholding in accordance with this part.”

When immediate income withholding is not in effect due to a good cause finding or a written agreement, a party may subsequently initiate income withholding, if appropriate. 

 

Also, Federal regulations at 45 CFR 303.100 require that in addition to the amount to be withheld to pay the current month's obligation, the amount to be withheld must include an amount to be applied toward liquidation of arrears.    However, before an arrears payment may be included in a Notice to Withhold, the non-custodial parent (NCP) must be given the opportunity to contest the amount of past-due support on the case. The NCP is informed of the past-due amount in the “Annual Notice of Past-due Child Support Notice.”

 

EXCEPTION:  Arrears that have been previously adjudicated may be collected by income withholding before an “Annual Notice” has been generated. 

 

Procedures – Intake, Pre-Order

 

At the time a case is first opened or reinstated on ORSIS, the CSS Intake worker or pre-order agent is responsible for reviewing the child support order, if one exists, to determine if the case qualifies for immediate income withholding. 

Likewise, when CSS establishes an administrative or judicial order, the Pre-order Agent is responsible for determining if the case qualifies for immediate income withholding.

 

Procedures – Post-Order

 

If a delinquency exists on a case that did not qualify for immediate income withholding, proceed with the steps listed below.

 

1.                  If the alleged delinquency accrued prior to opening a case and the amount of the delinquency meets auto-enforcement criteria, ORSIS will automatically generate an “Annual Notice” to the NCP.  This notice gives the NCP 30 days to contest the amount of past-due support listed in the notice.  You must allow the 30-day response period to pass before you take any action to enforce on the arrears, including income withholding.

 

2.                  If, during the 30-day response period, the NCP contests the amount of past-due support and claims that it is less than the amount of support due for one month, resolve the amount of delinquency before proceeding with Step 4.  However, if during the 30-day response period the NCP does not contest the amount of past-due support and does not claim that the amount of past-due support is less than the amount of support due for one month, proceed immediately with Step 4. 

 

3.                  If the delinquency accrued after opening a case on ORSIS, an “Annual Notice” has already been generated, and the amount of past-due support is equal or greater to the amount of support due for one month, immediately proceed with Step 4.

 

4.                  Code ORSIS to indicate that the case now qualifies for income withholding and allow automated income withholding to occur. 

 

5.                  The next day ORSIS will automatically generate separate withholding packets to the employer and to the NCP.  Both will contain the “Automated Notice to Withhold” and respective cover letters. The NCP’s packet will also contain the “Written Response to Contest Income Withholding” that provides the NCP with information regarding the opportunity to contest the withholding based on a mistake of fact, e.g., individual claims he is not the NCP on the case.

 

The review and appeal processes are the same for orders issued prior to October 13, 1990 as they are for orders issued on or after October 13, 1990.