Giving Hope and Support to America's ChildrenUIFSA Procedural Guidelines Handbook
UIFSA PROCEDURAL GUIDELINES
This document is an excerpt from the UIFSA Handbook. Its
purpose is to provide the reader with an instructional "how-to"
guide regarding the Uniform Interstate Family Support Act
(UIFSA) procedures. This document contains a mixture of
straightforward UIFSA procedures combined with a collection of
"best practices," originating from the UIFSA Retreat (held in
Fairfax, Virginia, in November, 1994). The acronym "BP" will
precede every "best practice" appearing in this document. The
UIFSA Retreat participants believe that following these
recommended best practices will assist in the uniform
implementation of UIFSA nationwide.
NOTE: The "best practice" recommendations are not official
Federal Office of Child Support Enforcement (OCSE) policy and
are not mandatory in nature.
GENERAL PROVISIONS OF UIFSA (GP)
GP1
Q. Is the date a State enacts UIFSA the "UIFSA implementation
date" for the State's entire interstate caseload?
NOTE: This use of the term "UIFSA implementation date"
refers to the date that the determination of Controlling
Order and arrears calculation must be made.
A. The early UIFSA States do not recommend this. Choosing the
date of enactment as the UIFSA implementation date in all
cases would require a massive review of the State's
caseload in order to identify the existing cases that are
impacted by UIFSA, as well as conducting follow-up
determinations of both CEJ and arrearage amounts in all
impacted cases.
GP2
Q. How did the early UIFSA States decide to implement UIFSA?
A. The majority of these States adopted a case-by-case
approach in implementing UIFSA. For a given case, the
UIFSA principles are applied when a subsequent proceeding
is brought under UIFSA. [See the Uniform Act, 207.]
NOTE: Some States are determining the effective UIFSA date
when a new, nonautomated (manual) UIFSA action is taken on
an existing case. Other States are determining the
effective UIFSA date when a new automated UIFSA action is
taken on a case.
GP3
Q. If a UIFSA State was enforcing a local Uniform Reciprocal
Enforcement of Support Act (URESA) order prior to the
enactment of UIFSA, and the local order may or may not be
the Controlling Order, how should this State proceed in
light of UIFSA?
A. BP: When the State is using automated enforcement remedies
(such as batch tax refund intercept or income withholding),
it is appropriate for a UIFSA State to use general State
laws rather than UIFSA principles. However, if one of the
parties raises the UIFSA issue, or if the IV-D agency
discovers that it is not enforcing the Controlling Order,
UIFSA principles should be followed to determine the
Controlling Order.
GP4
Q. Should an initiating State include the custodial parent's
and child's residential address on the petition?
A. Yes. The initiating UIFSA State should include the
custodial parent's and child's residential address on the
petition, unless there is a finding that nondisclosure is
appropriate. [See the Uniform Act, 312.]
GP5
Q. What is the extent of a IV-D agency's responsibility in
determining if a nondisclosure order needs to be entered?
A. The IV-D agency has a responsibility to inform the
custodial parent about the existence of a nondisclosure
determination process.
BP: It is recommended that such a process be built into
the State's intake procedures and paperwork.
GP6
Q. What entity in a responding UIFSA State sends the orders
and notices to the petitioner?
A. Under UIFSA, the responding "tribunal" is responsible for
sending many of the orders/notices to the petitioner and
initiating State.
BP: However (in IV-D cases) it is recommended that the
IV-D agency assume responsibility for sending these
orders/notices via an interagency agreement with its
tribunals.
NOTE: Under Federal Office of Child Support Enforcement
policy, responding IV-D agencies should communicate with
the initiating IV-D agency; not directly with an individual
petitioner.
GP7
Q. Is it appropriate to use multi-state private process
servers in UIFSA actions?
A. BP: The use of multi-state private process servers in
UIFSA actions is appropriate.
LONG-ARM PERSONAL JURISDICTION (LA) [See the Uniform Act, 201.]
LA1
Q: Must a case be routed to another State for necessary action
if the obligor does not reside in my State?
A. Under UIFSA, a "two-state" process can be avoided and a
State can proceed directly against the nonresident parent
if the State can assert personal jurisdiction over that
nonresident under its long-arm statute.
LA2
Q. What is "personal jurisdiction"?
A. Simply stated, "personal jurisdiction" means that a State
tribunal has the legal authority to make decisions which
directly affect an individual.
NOTE: Generally, State tribunals have personal
jurisdiction over all individuals residing within their
State boundaries.
LA3
Q. How does a State assert personal jurisdiction over a
nonresident?
A. In limited situations a State tribunal can extend its
authority over nonresidents. The most common way a State
tribunal asserts personal jurisdiction over a nonresident
is through the use of "long-arm" jurisdiction.
LA4
Q. When can one use "long-arm" jurisdiction to retain and
locally work a case involving a nonresident obligor?
A. UIFSA allows a State to avoid a "two-state" process and
serve the individual directly if one or more (long-arm)
circumstances exist in the case. [See Exhibit 3.1 (page
3-LA-4) for a check-list of eight circumstances recognized
by UIFSA.]
LA5
Q. How does one learn of the existence of one or more of the
grounds for asserting long-arm jurisdiction in a given
case?
A. Most of the grounds supporting an assertion of long-arm
jurisdiction are factually based. That is, whether the
alleged father previously resided with the child in the
State; sent the child to live in the State; or engaged in
sexual intercourse in the State (which might have resulted
in the child's conception) are all questions of fact. A
case-by-case determination is required to determine if
long-arm jurisdiction is available. Generally, the
custodial parent is the best source of the factual
information needed to make this determination.
BP: It may be helpful to your State if the initial
application documents (including the public assistance
referral packet) are revised to elicit this information at
the initial stages of the case.
LA6
Q. When a child support order is established in a long-arm
case, should the circumstance(s) supporting the assertion
of long-arm jurisdiction be included in the order?
A. Yes. It is very important that the circumstances
supporting the assertion of long-arm jurisdiction be
included in the order. Orders that clearly state the
specific long-arm circumstances are less likely to be
subsequently challenged (and if challenged, are more likely
to be upheld).
BP: In drafting the order, be as specific as possible when
reciting the statement of facts that support the exercise
of long-arm jurisdiction. An example of suggested long-arm
language for inclusion in appropriate orders:
Based on the court record and the testimony heard, the
court finds and concludes that the court had proper
jurisdiction over the nonresident responding party because:
þ the responding party was personally served within this
State;
þ the responding party knowingly and voluntarily
submitted to the jurisdiction of this State;
þ the responding party has previously resided with the
child in this State, during the period ...;
þ the responding party previously resided in this State
and provided prenatal expenses or support for the
child;
þ the child at issue resides in this State as a result
of the responding party's actions: ...;
þ the responding party engaged in sexual intercourse in
this State during the period ... and the child may
have been conceived by that act of intercourse;
þ the responding party asserted paternity in the
putative father registry filed with the appropriate
agency in this State; or
þ any other reason for the State's exercise of personal
jurisdiction.
EXHIBIT 3.1
CHECK LIST FOR ASSERTING LONG-ARM JURISDICTION
The following is a check-list of the eight circumstances
recognized by UIFSA (at 201) to support a State's assertion of
personal jurisdiction over a nonresident:
___ The individual is personally served within the State.
___ The individual submits to the State's jurisdiction by
consent, by entering a general appearance, or by filing a
document which waives a contest to personal jurisdiction.
NOTE: A reasonable basis for asserting long-arm
jurisdiction must be present before serving an individual
who resides in another State. Individuals with no nexus
(connection) to State X should not be served in another
State in the hope that they will respond and unwittingly
submit to the jurisdiction of State X. However, if (after
full disclosure) the nonresident individual consents to
submit to the jurisdiction of State X, it is appropriate to
serve this individual and proceed.
___ The individual has resided with the child in the State.
___ The individual has resided in the State and provided
prenatal expenses or support for the child.
___ The child resides in the State as a result of the
individual's actions.
___ The individual engaged in sexual intercourse in the State
and the child may have been conceived by that act of
intercourse.
___ The individual asserted paternity in the putative father
registry filed with the appropriate agency within the
State.
___ Any other legal basis exists for the State's exercise of
personal jurisdiction over the individual.
NOTE: Due to varying State standards in the area of
long-arm jurisdiction, research for additional
state-specific guidance.
RECOGNITION OF CONTINUING EXCLUSIVE JURISDICTION (CEJ) AND
DETERMINATION OF THE CONTROLLING ORDER
[See the Uniform Act, 205 and 207]
Under UIFSA, the concept of Continuing Exclusive Jurisdiction
(CEJ) determines which State has the authority to modify a child
support order. UIFSA's "Controlling Order" is the order to be
prospectively enforced. When multiple orders exist in a single
case, it is necessary to determine CEJ and identify the
Controlling Order. This section will assist you in making those
determinations.
CEJ1
Q. When does a State tribunal (court or administrative forum)
have CEJ?
A. A State tribunal has CEJ:
þ as long as the obligor, the individual obligee, or the
child continue to live in the State that issued the
order; or
þ until the obligor and individual obligee provide
written notice to the original issuing tribunal that
they are consenting to a modification of the order in
a tribunal in another State and recognize that the new
tribunal will assume CEJ.
CEJ2
Q. How is CEJ determined when no child support order exists in
a case?
A. The tribunal with personal and subject matter jurisdiction
that issues the first child support order, excluding
temporary orders, assumes CEJ over the support order. This
initial order becomes the Controlling Order.
NOTE: This tribunal retains CEJ as long as it remains the
State of residence for the obligor, obligee, or any child
covered by the order, or until each individual party
consents to another State's jurisdiction.
CEJ3
Q. How is the Controlling Order determined when only one child
support order exists in a case?
A. Recognize that order as the Controlling Order. The State
that issued it is the State with CEJ. [See the Uniform
Act, 207(a)(1).]
CEJ4
Q. How is the Controlling Order determined when two or more
child support orders exist in a case?
A. If only one tribunal has CEJ (see CEJ1, above), recognize
that tribunal's order as the Controlling Order. [See the
Uniform Act, 207(a)(2).]
CEJ5
Q. How is the Controlling Order determined in multiple order
cases when two or more tribunals are eligible to claim CEJ?
A. In multiple order cases, if more than one tribunal is
eligible to claim CEJ, recognize the order issued by the
tribunal of the child's current home State. [See the
Uniform Act, 207(a)(3).]
CEJ6
Q. How does UIFSA define the child's "home State?"
A. The child's "home State" is defined as the State where the
child has lived for at least 6 months immediately before
the current, pending action was filed. If the child is
less than 6 months old, the child's home State is the State
where the child has lived since birth.
CEJ7
Q. How is the Controlling Order determined in multiple order
cases when two or more tribunals are eligible to claim CEJ
but none are the child's current home State?
A. In multiple order cases, where more than one tribunal would
have CEJ and the child's current home State has not issued
an order, recognize the most recent order issued by a
CEJ-eligible tribunal. [See the Uniform Act, 207(a)(3).]
CEJ8
Q. How is the Controlling Order determined in multiple order
cases where none of the issuing tribunals can claim CEJ?
A. In multiple order cases, if none of the issuing tribunals
has CEJ, UIFSA allows the issuance of a new order. (In
fact, the Official Comments to the Uniform Act state that
"the forum tribunal is directed to issue a new order" in
these situations.) If a new order is issued, the issuing
tribunal assumes CEJ and the new order becomes the
Controlling Order. However, in these instances it is
permissible to choose to enforce one of the existing orders
rather than enter a new order. [See the Uniform Act,
207(a)(4).]
BP: In multiple order cases, where none of the issuing
tribunals has CEJ, the recommended "best practice" is for
the responding State to issue a new order. This is
recommended because, under UIFSA, registering an order
issued by a tribunal without CEJ does not make the
registered order a Controlling Order. In addition, it
would be difficult to know which order to register.
CEJ9
Q. If there are multiple overlapping non-Controlling Orders in
a given case (i.e., different orders for support of the
same children), how should the responding tribunal
determine arrears when proposing a new order?
A. The responding tribunal should determine the arrears under
the highest order and determine the prospective support by
establishing a new order. There are two steps:
1) reconcile the arrears; and
2) establish a new prospective order using the
responding State's guidelines.
CEJ10
Q. Which State is responsible for making the Controlling Order
determination?
A. Both the initiating and responding States have
responsibilities for making the Controlling Order
determination. The initiating State makes a preliminary
determination and the responding State makes the final
determination.
CEJ11
Q. At what point is the decision about the Controlling Order
final?
A. In registration actions, the order determined to be the
Controlling Order is enforceable at the time of
registration. [See the Uniform Act, 603 and 605(b)(1).]
However, UIFSA provides the nonregistering party with a
20-day period to contest the validity or enforcement of the
order registered as the Controlling Order. Because of this
appeal period, the decision regarding the Controlling Order
does not become final until the confirmation date. The
confirmation date is either:
a) the end of the time period to contest (if no contest
is requested); or
b) the date the contest is settled and a confirming order
is issued. [See the Uniform Act, 608.]
CEJ12
Q. Who can make the Controlling Order determination?
A. Under UIFSA, the responding tribunal makes the final
determination. UIFSA defines "tribunal" to include an
administrative agency that is authorized to establish,
enforce, or modify support orders. Some State IV-D
agencies meet this definition.
CEJ13
Q. When there are multiple orders in a case, must the parties
be notified prior to making an informal determination of
Controlling Order?
A. Notice to either party of an informal determination of
Controlling Order is not required under UIFSA.
CEJ14
Q. When there are multiple orders in a case, must the parties
be notified prior to making a formal determination of
Controlling Order?
A. In a responding State's formal determination of Controlling
Order, UIFSA requires that notice be provided only to the
nonregistering party (via the notice of registration of
order). The nonregistering party has the opportunity to
request a hearing to contest the validity or enforcement of
the registered order. In contested cases, the petitioner
will receive notice of the formal determination of
Controlling Order when the petitioner receives a copy of
the responding tribunal's confirmation order.
CEJ15
Q. Does the final Controlling Order determination require a
formal hearing or proceeding?
A. Not necessarily. If the nonregistering party fails to
timely contest the initial determination, the determination
becomes final by operation of law. However, if the initial
determination is contested by the nonregistering party, the
final determination must be made by the tribunal hearing
the contest.
CEJ16
Q. Once a final Controlling Order determination is made,
should other States be notified?
A. BP: Yes. Tribunals in other States with orders should be
notified when the final Controlling Order determination is
made. Notice of this determination should be sent to the
appropriate State's Central Registry. (The Interstate
Forms Work Group is developing a standardized form/notice
for this purpose.)
CEJ17
Q. Will the Controlling Order determination be binding upon
other States?
A. BP: All UIFSA States should recognize another State's
determination of Controlling Order as binding.
CEJ18
Q. What should State X do when it is notified that its order
was not determined to be the Controlling Order?
A. BP: When State X is notified that its order was not
determined to be the Controlling Order, State X should not
enforce its order prospectively. Even if the IV-D case in
State X is closed, the IV-D case records and court records
should be updated (because the case may reopen).
CEJ19
Q. Does CEJ affect spousal support orders in the same manner
that it affects child support orders?
A. No. The first State that issues a spousal support order
retains CEJ over the spousal support provision for the life
of the order. [See the Uniform Act, 205(f) and Official
Comment following this section.]
NOTE: UIFSA does not allow tribunals in other States to
modify the spousal support provision of the original
issuing tribunal.
CHOICE OF LAW/DETERMINING WHICH STATE'S LAWS APPLY (CL)
CL1
Q. Which State's laws apply in a UIFSA proceeding?
A. Under UIFSA (303), the general rule regarding choice of
law is that the responding State's law controls.
CL2
Q. Are there any exceptions to this general rule?
A. Yes, the main exception to this general rule is:
þ UIFSA specifies that the nature, extent, amount, and
duration of the current support and other obligations
of support (including the payment of arrears) is
governed by the law of the State issuing the
Controlling Order. [See the Uniform Act, 604.]
- In a proceeding for arrearages, the choice of law
in determining which State's statute of
limitations to apply is easy to remember. Always
apply the law of the State with the longest
statute of limitations available.
CL3
Q. Are there any other exceptions to UIFSA's general rule that
the law of the forum (responding) State controls?
A. Yes. UIFSA mandates certain procedures. For example,
UIFSA expressly provides for:
þ what known information must be included in a UIFSA
Petition; [See the Uniform Act, 311.]
þ not disclosing the address of the custodian and
children, when so ordered by a tribunal that has
determined that their health or safety may be at risk;
[See the Uniform Act, 312.] and
þ limited immunity from service of process when in a
State to participate in a UIFSA action. [See the
Uniform Act, 314.]
CL4
Q. Does UIFSA allow the payment of child support to be
conditioned upon the obligor's visitation with the child?
A. No, the payment of child support, in a UIFSA action, cannot
be conditioned upon visitation, regardless of the general
law of either the initiating or responding State. [See the
Uniform Act, 305(d).]
ESTABLISHING PATERNITY UNDER UIFSA (EP) [See the Uniform Act, 701.]
EP1
Q. How is paternity established under UIFSA?
A. Under UIFSA, paternity actions are to be pursued in the
same fashion as the responding State pursues intrastate
paternity cases. [See last sentence of Official Comment to
701.]
NOTE: Remember, UIFSA is a procedural vehicle. As a
general rule, apply the substantive law of the State where
the action is occurring.
EP2
Q. Is it possible under UIFSA to pursue a paternity
establishment action without pursuing a child support
order?
A. Yes, UIFSA allows a separate paternity action to be
pursued. That is, an action to establish a support order
does not need to be tied to the paternity action.
NOTE: Under existing Federal OCSE policy, it is not
appropriate, in IV-D cases, to request that the responding
State establish paternity, but not pursue a child support
order. In interstate IV-D cases, the initiating State
cannot pick and choose the services to be provided by the
responding State. In interstate IV-D cases under UIFSA, it
remains the responsibility of the responding State to
provide the full range of appropriate services.
EP3
Q. Does UIFSA allow a man (claiming to be the father of a
child) to file a paternity establishment action?
A. Yes. UIFSA allows a man asserting his paternity to
initiate a paternity action to have himself declared to be
the child's legal father. Under UIFSA apply the
substantive and procedural law of the responding State in a
proceeding to determine parentage.
ESTABLISHING AN INITIAL CHILD SUPPORT ORDER (EIO)
[See the Uniform Act, 401.]
EIO1
Q. Assuming that long-arm jurisdiction is not available, how
can a State establish a child support order against a
nonresident when a CEJ order does not exist?
A. In cases where a tribunal with CEJ has not issued a child
support order, one may be obtained via a traditional
two-state interstate process. UIFSA states that a tribunal
may issue a child support order if a nonresident, or
out-of-state IV-D agency, is seeking the order (assuming
the tribunal has personal and subject matter jurisdiction).
[See the Uniform Act, 401.]
EIO2
Q. If the underlying divorce order is silent as to the support
obligation, is the appropriate action under UIFSA
establishment or modification?
A. BP: In cases where the underlying divorce order is silent
as to the support obligation, the appropriate action under
UIFSA is establishment. However, if the underlying order
expressly sets a support obligation at zero dollars, the
appropriate action would be a modification. If a
modification action is appropriate, a CEJ determination
must be made to determine the appropriate tribunal to hear
the action.
EIO3
Q. If the support issue is reserved by the court entering the
divorce order, is the case an establishment case or a
modification case?
A. BP: If the support issue is reserved, the answer depends
upon the reason why it was reserved. If the support issue
was reserved due to lack of personal jurisdiction, it is an
establishment case. If there was jurisdiction, but the
support issue was reserved for some other reason (e.g.,
lack of income information) the "best practice" is to try
to establish an order locally. If that will not work, note
(in the order) the reason why the issue of support was
reserved and treat the case as an interstate establishment
case.
EIO4
Q. Are temporary orders available under UIFSA?
A. Yes. A tribunal with personal jurisdiction over the
parties may issue a temporary child support order if
temporary orders are allowed under the responding State's
law or if paternity has been determined, acknowledged, or
clear and convincing evidence of paternity exists. [See
the Uniform Act, 401.]
EIO5
Q. What is "clear and convincing evidence of paternity?"
A. Examples of "clear and convincing evidence of paternity"
(provided in the official comments to the Uniform Act) are:
þ A verified statement acknowledging paternity (as
required by OBRA '93).
þ The obligor names the child as a dependent on an
insurance policy.
NOTE: Your State law may provide other examples of "clear
and convincing evidence of paternity."
EIO6
Q. When can a final order be entered in an interstate case
under UIFSA?
A. Under UIFSA, a responding tribunal with personal
jurisdiction over the parties may issue a final child
support order in accordance with its local child support
schedule if it finds, after notice and an opportunity to be
heard, that the obligor owes a duty of support.
EIO7
Q. Which entity in a UIFSA State is responsible for sending
the receipt of petition acknowledgment and copies of any
orders entered to the initiating State's IV-D agency or
tribunal?
A. NOTE: Federal OCSE regulations require that the IV-D
agency send the acknowledgment and copies of orders
entered, even though UIFSA [at 305(a) and (e)] states that
the responding tribunal is responsible for sending these
notices. [See 45 CFR 303.7(a)(2)(iii) and (c)(9).]
EIO8
Q. To whom should the IV-D agencies send the 305 notices
(notice that a petition has been filed/copy of order)?
A. In IV-D cases, the Federal regulations cited above require
the 305 notices to be sent to the IV-D agency in the
initiating State. The IV-D staff in the initiating State
should forward copies of any notices they receive to the
petitioner.
ENFORCING AN EXISTING CHILD SUPPORT ORDER
Direct Income Withholding (DIW) [See the Uniform Act, 501.]
DIW1
Q. When does UIFSA allow State A to serve an out-of-state
employer (who does not conduct business in State A) with an
income withholding order?
A. UIFSA expressly allows a State IV-D agency (even a
non-UIFSA State) to issue an income withholding order to
any out-of-state employer, if that employer is located in a
State that has enacted and implemented UIFSA (including
501, Direct Income Withholding).
DIW2
Q. Are there special processing procedures for direct income
withholding orders/notices served on an out-of-state
employer?
A. No, a direct income withholding action under UIFSA is
processed in much the same fashion as an income withholding
order/notice served in an intrastate case.
DIW3
Q. What method of service is required under UIFSA for direct
income withholding orders?
A. Under UIFSA, a direct income withholding order may be sent
by regular mail to the obligor's employer. [See the
Uniform Act, 501(a).]
DIW4
Q. What duties does UIFSA place upon an employer who receives
a direct income withholding order?
A. Under 501 of UIFSA, when the withholding order is "regular
on its face," the employer has three duties upon receiving
the income withholding order from the out-of-state IV-D
agency:
1) treat it as if it had been issued by a tribunal of the
employer's State;
2) provide the obligor with a copy of the income
withholding order immediately; and
3) distribute the funds as directed in the withholding
order.
DIW5
Q. Which State is responsible for pursuing enforcement actions
against an employer who fails to honor the direct income
withholding order?
A. UIFSA does not specifically address this issue. However,
the State issuing the direct income withholding order may
elect to register the income withholding order with the
appropriate tribunal in the employer's State. If the
employer fails to honor the registered income withholding
order, the responding State would pursue enforcement
action. [See the Uniform Act, 601 and 603.]
BP: The laws and rules of the obligor's work-state govern
any enforcement action pursued against the employer.
DIW6
Q. When can the employer stop honoring the direct income
withholding order?
A. BP: The employer can stop honoring the direct income
withholding order upon receipt of a tribunal's order
directing the employer to do so or when advised to do so by
the State issuing the income withholding order.
DIW7
Q. What kinds of income/resources can be attached via a direct
income withholding order?
A. Under UIFSA, service of a direct income withholding order
is restricted to the person or entity defined as the
obligor's employer under the income withholding laws of the
obligor's work-state.
NOTE: This means that some familiar resources (i.e.,
Unemployment Compensation, Worker's Compensation benefits,
etc.) cannot be attached via the direct income withholding
order unless the obligor's State income withholding law
defines the payor of such benefits as an "employer" of the
obligor.
DIW8
Q. What are the advantages to using the direct income
withholding remedy?
A. Use of the direct income withholding remedy is expedient
and avoids a two-state process. According to a pre-UIFSA
study by the Federal General Accounting Office, employers
in a second State routinely recognized withholding orders
of a sister State despite the lack of any statutory
authority to do so. UIFSA recognizes an actual practice.
[See Official Comments following Uniform Act, 501.]
DIW9
Q. Should direct income withholding be used in cases where
other enforcement remedies are required (e.g., health
insurance enforcement, license revocation, property liens)?
A. BP: No. Health insurance coverage (as opposed to
liquidated medical expenses which have been reduced to a
sum-certain judgment) cannot be enforced via direct income
withholding. A direct income withholding order should not
be issued if the initiating State is also requesting a
responding State to register an order for other enforcement
action.
NOTE: This does not mean that health insurance coverage
cannot be enforced under UIFSA. If enforcement of health
insurance coverage is desired, an initiating State may
request either administrative enforcement (where available)
or registration of the order for enforcement. [See the
Uniform Act, 502(b) and 601.]
DIW10
Q. Should direct income withholding be implemented where
multiple overlapping orders (from different States) exist
on a case and a CEJ/arrears determination has not been
made?
A. UIFSA, at 207, requires that a CEJ/arrears determination
be made in a UIFSA proceeding involving multiple orders.
Arguably, the direct income withholding remedy is a
proceeding under the Act. Because of this, the CEJ/arrears
determination should be made in multiple order cases before
a direct income withholding order is issued.
BP: Use of the direct income withholding remedy is not
recommended in cases where multiple overlapping order (from
different States) exist and a CEJ/arrears determination has
not been made. This is due to the possibility that more
than one State may be taking enforcement action. In
addition, when the arrearage issue is unsettled (due to
conflicting overlapping orders from different States) the
likelihood of the obligor requesting a contest is very
high. A contest to the direct income withholding order
generally results in the establishment of a two-state case,
due to the difficulties faced by the issuing IV-D agency in
defending a contest held in a sister State without the
assistance of the IV-D agency in that State.
Finally, Professor Jack Sampson's Unofficial Annotation to
501 (Annotation #118) notes that precautions must be taken
(with the use of the direct income withholding remedy) to
protect the parties and the employer. These precautions
include actions to ensure that the payment is sent "to the
correct payee, be it a clerk of court, a custodial parent,
or a IV-D agency."
DIW11
Q. Should a State attempt direct income withholding if a
traditional two-state case exists and is being worked by
the responding State?
A. BP: This is not recommended.
NOTE: There are several reasons why this practice is not
recommended. It avoids the service of duplicative
withholding orders on the same case by IV-D agencies in
different States (and the resulting distribution/accounting
complications for both the employer and the IV-D agencies).
In addition, the direct income withholding remedy is
limited to attaching income whereas the two-state process
provides full IV-D services.
DIW12
Q. What process should an initiating State (in a traditional
two-state case) follow if it wants to issue a direct income
withholding on an open interstate case?
A. BP: In the event an open two-state case exists, the
initiating IV-D agency should not issue a direct income
withholding order without first notifying the responding
IV-D agency and requesting that the existing interstate
case be closed.
DIW13
Q. Are there other situations where use of the direct income
withholding remedy may be problematic?
A. BP: Direct income withholding is not recommended as the
remedy of first choice in cases where:
þ the amount of the arrearage is in dispute (the 207
CEJ/arrears determination has not been made);
þ the statute of limitations is a problem;
þ a request for a two-state process comes from the
employer's State (when the IV-D agency in the
employer's State learns of the existence of a
duplicate income withholding order); or
þ there is a possibility that more than one State may be
taking enforcement action.
DIW14
Q. Is the obligor able to contest or challenge a direct income
withholding order?
A. Yes. The obligor may contest the direct income withholding
order. [See the Uniform Act, 501(b).]
DIW15
Q. Where should the obligor direct a contest?
A. UIFSA requires the obligor to notify any support
enforcement agency providing services to the obligee. In
addition, UIFSA requires the obligor to provide notice to
the "person or agency designated to receive payments in the
income withholding order." [See the Uniform Act, 501(b).]
NOTE: "The person or agency designated to receive payments
in the income withholding order" will generally be the IV-D
agency in the State issuing the direct income withholding
order.
DIW16
Q. Where does a contest to a direct income withholding order
occur?
A. UIFSA does not explicitly answer this question. BP:
However, most UIFSA practitioners agree that such a contest
should occur in the obligor's work-state.
NOTE: Since this is a "direct" income withholding action
taken by the "initiating" (issuing) State, the IV-D agency
in the obligor's work-state may not know anything about the
action, or the case.
If the IV-D agency in the obligor's work-state receives the
obligor's request for contest, the State issuing the direct
income withholding order must be notified immediately.
When the issuing State learns of the obligor's contest, it
must provide the tribunal (which may not be a IV-D agency)
in the obligor's work-state with sufficient information to
make a determination regarding the contest to the direct
income withholding action.
BP: When the issuing State learns of a contest, it may be
more efficient for the issuing State to terminate the
direct income withholding order and initiate a traditional
two-state enforcement action.
DIW17
Q. How are contests (to direct income withholding)
coordinated?
A. BP: The obligor should send a copy of the notice of the
contest to the IV-D agency in the State that issued the
direct income withholding order (issuing State). [See
DIW15 above.]
The issuing State (dealing directly with the obligor) is
encouraged to attempt to resolve the dispute informally.
If the contest cannot be resolved informally, or if the
obligor does not wish to go through an informal resolution
process, the issuing State has two options:
1) provide the appropriate tribunal in the obligor's
work-state with sufficient information to make a
formal disposition of the contest; or
2) request the IV-D agency in the obligor's work-state to
register the order. The IV-D agency in the obligor's
work-state will treat the order as a contested order
and immediately proceed to resolution through a
hearing or other appropriate remedy in that State.
DIW18
Q. Can an employer contest a direct income withholding action?
A. UIFSA does not authorize an employer to contest a direct
income withholding action. According to 501(a), if the
income withholding order is "regular on its face," the
employer is required to begin distributing funds as
directed in the withholding order.
DIW19
Q. When direct income withholding is used, which State's law
applies?
A. BP: While not expressly answered by UIFSA, the recommended
best practice is to apply the laws of the obligor's
work-state to determine:
þ the deduction of fees that employers may charge for
withholding;
þ the time period for remitting payments following the
date of withholding;
þ the time period the employer has to initiate
withholding;
þ penalties that may be placed upon the employer for
failing to honor the withholding order;
þ the definitions of "income" and "disposable income";
and
þ the treatment of lump-sum payments to the
employee/debtor.
DIW20
Q. Which State's law controls the issue of any interest
chargeable to the obligor's arrearage and enforceable by
wage withholding?
A. BP: The law of the State issuing the underlying child
support order controls the issue of any interest chargeable
to the obligor's arrearage and enforceable by wage
withholding. If interest is being collected, it is
strongly recommended that the State issuing the direct
income withholding order reduce the interest amount to a
sum certain to be withheld each pay-period by the employer.
Administrative Enforcement of Orders (AE) [See the Uniform Act,
502.]
AE1
Q. When the initiating State knows that the responding State
has an administrative enforcement mechanism in place, may
it request that administrative enforcement be implemented
prior to a registration action for enforcement?
A. Yes, an initiating State may request the responding State
to implement administrative enforcement actions without
registering the order. [See the Uniform Act, 502.]
NOTE: Some responding States with administrative
enforcement remedies may choose initially to use these
remedies even if the initiating State does not request
their use.
AE2
Q. If the initiating State requests administrative
enforcement, what information does it need to send to the
responding State?
A. The initiating State needs to send the responding State the
same packet of materials that is required when registration
for enforcement is requested, but clearly indicate that
administrative enforcement is sought. [See the Uniform
Act, 502(a).]
AE3
Q. Which State has the final decision regarding the
implementation of administrative enforcement remedies?
A. The responding State has the final decision regarding the
implementation of administrative enforcement, or any other
action to be taken.
AE4
Q. If the responding State decides to initiate administrative
enforcement remedies, does the order need to be registered
after these remedies are in place?
A. If the responding State decides to initiate administrative
enforcement remedies, the order does not need to be
registered after these remedies are in place unless the
obligor contests the administrative enforcement. (However,
the order must be registered if the obligor contests the
administrative enforcement.) [See the Uniform Act,
502(b).]
Registration for Enforcement (RE) [See the Uniform Act, 601 and
602.]
Procedures of Initiating State in Registration for Enforcement Action
RE1
Q. What procedures should the initiating State follow to
request registration of an existing child support order for
enforcement?
A. The initiating State should start by identifying all
existing child support orders (including modifications)
associated with the case.
BP: The best source of information regarding the existence
of child support orders is usually the custodial parent.
It is recommended that this information be obtained as
early as possible.
To this end, the public assistance referral documents
and/or nonassistance application forms should ask the
custodial parent about the existence of all child support
orders.
NOTE: If more than one child support order exists,
determine which order is the Controlling Order. The
Controlling Order is the order to be prospectively
enforced. [See "Recognition of CEJ and Determining
Controlling Order," beginning on page 7.]
RE2
Q. Must the Controlling Order be used to determine the
existence of any arrears?
A. The Controlling Order may not be the only order used to
determine the arrears. Any valid child support order may
be used to calculate the arrears.
BP: In multiple order cases, it is recommended that
arrears be calculated by using the order setting the
support obligation at the highest amount (from the
effective date of that order) and applying credit for
payments based on that, or any other, order.
RE3
Q. Should the initiating State include its arrears calculation
in the information it sends to the responding State?
A. Yes, the initiating State should include its arrears
calculation in the information it sends to the responding
State. It is important to prepare the arrears calculation
clearly and accurately.
BP: A month by month breakdown of the arrearage is
recommended.
BP: If more than one order is used to determine the
arrears, note the time periods applicable for each order on
the debt calculation that is forwarded to the responding
tribunal.
RE4
Q. Under UIFSA, may IV-D agencies continue to send UIFSA
packets to the Central Registry of the responding State?
A. Yes, the direct income withholding provisions within UIFSA
do not preclude traditional two-state administrative or
judicial enforcement actions. [See the Uniform Act, 502
and 601.]
NOTE: Federal OCSE policy states that initiating States
are still required to direct interstate packets to the
Responding State's Central Registry. [See OCSE Dear
Colleague letter 94-54.]
RE5
Q. What documents and information should the initiating State
send to the responding State to request registration for
enforcement?
A. When the initiating State has determined the Controlling
Order and the arrears, UIFSA, at 602(a), requires the
following documents and information be sent to the
responding State's Central Registry:
þ a letter of transmittal (the Support Enforcement
Transmittal meets this requirement) requesting
registration and enforcement;
þ two copies, one of which is a certified copy, of "all
orders to be registered," including any modification;
NOTE: "All orders to be registered" includes the
Controlling Order and all orders used to determine the
arrears. However, please send copies of all known
orders to the responding tribunal, including orders
that you are not requesting be registered.
þ a sworn statement by the party seeking registration
(generally the obligee) or a certified statement by
the custodian of the records (generally a IV-D agent)
showing the amount of any arrearage;
þ the name of the obligor and, if known, the obligor's
address and social security number, the name and
address of the obligor's employer or a description
(including the location) of any other source of income
or nonexempt property of the obligor; and
þ the name and address of the obligee and, in IV-D
cases, the name and address of the agency entitled to
receive the payments.
Responding State's Procedures in Registration for Enforcement Action
RE6
Q. What procedures does the responding State follow in
response to a request to register an order for purposes of
enforcement?
A. When a State receives a transmittal from another State
requesting registration and enforcement of an out-of-state
support order, the responding State should follow the
procedures described below:
þ Review the request to register a foreign order to
ensure that it is complete. The request should
include:
- a letter of transmittal;
- one certified copy and one regular copy of each
support order to be registered; and
- a sworn statement of the arrears by the party
seeking the registration, or a certified
statement of the arrears by the custodian of the
records.
þ Determine the Controlling Order and any arrears owed
on the case.
NOTE: The initiating State should have made a
determination of the Controlling Order and the amount
of any arrears that may be owed. However, it is the
responsibility of the responding tribunal to make the
final determinations regarding the Controlling Order
and any arrears that may be owed. [See "Recognition
of CEJ and Determining Controlling Order," beginning
on page 7.]
NOTE: It has been the experience of the early UIFSA
States that the initiating tribunal's initial
determinations are almost always affirmed.
þ If the responding State's determinations of the
Controlling Order and arrears conform to the
determinations of the initiating State, the responding
State must file the Controlling Order, and any orders
used to determine the arrears in the appropriate State
tribunal.
þ If the responding State's determinations of the
Controlling Order and/or arrears differ from the
determinations of the initiating State, the
registration packet and order should not be filed with
the State tribunal.
BP: In these instances, contact the initiating State
and discuss your differing determinations of
Controlling Order and/or arrears. Ask the initiating
State to provide an amended registration packet in
conformance with your determinations.
When you receive the amended registration packet, file
the appropriate paperwork and orders with your
tribunal.
þ Serve the nonregistering party with a Notice of
Registration, which includes a copy of the order(s) to
be registered and a payment record.
According to 605(b), a Notice of Registration must
inform the nonregistering party of:
- the legal effect of registration;
NOTE: That a registered order is enforceable as
of the date of registration in the same manner as
an order issued by a tribunal of the responding
State.
- the right to contest the validity or enforcement
of the order;
- the legal results of a failure to contest the
validity or enforcement of the order; and
- the amount of any alleged arrears.
RE7
Q. Should the Notice of Registration include information about
the Controlling Order's current support amount and
prospective enforceability date?
A. Yes, the Notice of Registration should include information
about the Controlling Order's current support amount and
prospective enforceability date. The nonmoving party must
have the opportunity to challenge the determination of the
Controlling Order as well as the calculation of arrears.
RE8
Q. Does the arrears calculation process require a formal
hearing or proceeding?
A. If there is no challenge to the arrears claimed in the
enforcement notice, it is not necessary to hold a formal
hearing.
BP: If there is a contest to the arrears claimed in the
enforcement notice, it is recommended that an informal
resolution of the challenge be attempted before turning to
a formal hearing. If an informal resolution cannot be
achieved, then a formal hearing is necessary to resolve the
dispute.
RE9
Q. How does registration for enforcement under UIFSA differ
from a registration action under URESA?
A. An order registered for enforcement under UIFSA remains the
order of the original issuing tribunal and does not become
an order of the State where it is registered. [See the
Official Comment following 603.]
RE10
Q. Is an arrears determination binding on other States?
A. BP: Although UIFSA does not expressly address this issue,
in order to assure the uniform implementation of UIFSA
nationwide, once there has been an arrears determination by
a tribunal (where the obligor has received notice and an
opportunity to contest), this determination should be
binding upon other States.
Procedures Involving a Contest to Registration (CR)
CR1
Q. Can the nonregistering party contest the validity or
enforcement of the registered order?
A. Yes, the nonregistering party can contest the validity or
enforcement of the registered order. [See the Uniform Act,
605(b)(2).]
CR2
Q. How many days does the nonregistering party have to
initiate a contest regarding the validity or enforcement of
the registered order?
A. The nonregistering party must request a hearing within 20
days of the date of mailing or personal service of the
notice of registration.
NOTE: The 20 day period is taken from the Uniform Act.
[See the Uniform Act, 605(b)(2).] Your State may provide
for a different time period during which the nonregistering
party may request a hearing to contest the notice of
registration. The Uniform Act does not specify whether
these are "calendar" or "working" days.
CR3
Q. What action does the responding State take in response to
receiving a contest/request for hearing?
A. The responding State schedules a hearing and gives notice
to the parties of the date, time and place of the hearing.
CR4
Q. What defenses are available to the nonregistering party in
a contest regarding the validity or enforcement of the
registered order?
A. Under UIFSA's 607(a), the nonregistering party has the
burden of proving one or more of the following defenses:
þ The issuing tribunal did not have personal
jurisdiction over the nonregistering party.
þ The order was obtained by fraud.
þ The order has been vacated, suspended, or modified by
a later order.
þ The issuing tribunal has stayed the order pending an
appeal.
þ There is a defense under the law of the registering
State to the remedy sought.
þ Full or partial payment has been made.
þ The statute of limitations precludes enforcement of
some or all of the arrears.
NOTE: Keep in mind that the nonregistering party is free
to return to the issuing (CEJ) tribunal to initiate a
contest (or modification) action that is available under
the issuing State's general laws.
CR5
Q. What actions should the responding State take if the
nonregistering party is only contesting the arrears
calculation?
A. The responding State should ask the registering tribunal to
require the payment of current support, pending the outcome
of the arrears contest. [See the Uniform Act, 607(b).]
CR6
Q. What actions should the responding State take if the
nonregistering party proves that the arrears calculation is
incorrect?
A. If the nonregistering party proves that the arrears
calculation is incorrect, the responding State should
ensure that the registering tribunal includes the correct
arrearage amount in the confirmation order.
CR7
Q. What happens if the nonregistering party fails to prove a
defense to the notice of registration at a subsequent
contest?
A. If the nonregistering party timely contests the
registration but fails to prove a defense to the notice of
registration, the registering tribunal shall issue an order
confirming the registered order, including the claimed
arrears, as originally filed.
CR8
Q. What happens if the nonregistering party fails to timely
contest the notice of registration?
A. If the nonregistering party fails to timely contest the
notice of registration, the registered order is confirmed
by operation of law. [See the Official Comment following
608.]
CR9
Q. What effect does confirmation of the registered order have
on the case?
A. Confirmation of the registered order precludes a further
contest of the order with respect to any matter that could
have been raised at the time of registration. [See the
Uniform Act, 608.]
CR10
Q. Should an order of confirmation be entered?
A. BP: Yes, an order of confirmation should be entered if the
nonregistering party makes a timely contest but failed to
prove a defense. However, this does not necessarily need
to be a traditional order that is signed by a judge. A
computer-generated document which spells out the resolution
may suffice.
CR11
Q. Should an order of confirmation be entered in cases where
the obligor fails to make a timely contest?
A. UIFSA does not require an order of confirmation be entered
in cases where the obligor fails to make a timely contest.
CR12
Q. What notice should the responding State send to other
States that have previously issued orders in the case, once
a final determination of the Controlling Order and arrears
is achieved?
A. BP: Although UIFSA does not require notice, it is strongly
urged that tribunals in other States with orders be
notified when the final Controlling Order determination is
made. Notice of this determination should be sent to the
appropriate State's Central Registry.
MODIFYING AN EXISTING CHILD SUPPORT ORDER (MEO)
[See the Uniform Act, 609 and 611.]
MEO1
Q. Under what circumstances can a tribunal, which is not the
original issuing (CEJ) tribunal, modify a child support
order?
A. UIFSA provides two situations where a tribunal, other than
the original issuing (CEJ) tribunal, can assume
jurisdiction and modify the child support order:
1) if none of the individual parties or child continues
to live in the original issuing State; or
2) if all individual parties have filed written requests
with the issuing CEJ tribunal requesting modification
in another State.
MEO2
Q. Which party is authorized under UIFSA to request a
modification?
A. Either party (the individual obligor or the individual
obligee) may request a modification.
MEO3
Q. In modification actions, how does a tribunal obtain
jurisdiction over both parties?
A. UIFSA requires the petitioner to be a nonresident.
Therefore, jurisdiction over both parties is assured
because the tribunal already has jurisdiction over the its
State's residents.
Procedures for Requesting Another State to Register an Order for
Modification
MEO4
Q. What procedures should be followed to request another State
to register an order for modification?
A. Follow these procedures:
þ Complete the same actions necessary to register an
order for enforcement (beginning on page 24).
þ In addition, a petition requesting modification must
be filed.
NOTE: The petition may be filed at the same time as
the request for registration, or later. The petition
must state the grounds (reasons) supporting a
modification and the petition must be verified.
Procedures When a Responding State is Requested to Register an Order
for Modification:
MEO5
Q. What procedures should be followed when a responding State
is requested to register an order for modification?
A. Follow these procedures:
þ Serve the nonrequesting party to the order with notice
of the registration for modification. (The motion for
modification may be served upon the nonrequesting
party concurrently with the notice of registration for
modification.)
- Under 611(a)(1), the notice must assert that:
-- the obligor, obligee, and the child no
longer reside in the issuing State; the
party asking for the modification does not
reside in your State; and the nonrequesting
party is subject to the personal
jurisdiction of your State.
Or,
-- at least one party (or the child) is subject
to the personal jurisdiction of your State
and all of the individual parties have filed
a written consent in the issuing tribunal
authorizing a tribunal in your State to
modify the order and assume CEJ.
- This notice must provide the nonrequesting party
with an opportunity to request a hearing to
contest the registration action.
- If the nonrequesting party requests a hearing to
contest the registration action, the responding
tribunal must find that one of the 611(a)(1)
assertions of jurisdiction is true, in order to
proceed to the modification action.
- If the nonrequesting party fails to timely
contest the notice of registration for
modification, the order is confirmed by operation
of law.
þ Once the order is registered for modification, you may
proceed with the actual modification action.
- Modification of the registered order is subject
to the same requirements, procedures and defenses
that apply to the modification of an order issued
by a tribunal in your State. [See the Uniform
Act, 611(b).]
- Use the responding State's Child Support
Guidelines to determine the child support
obligation.
- A tribunal in the responding State cannot modify
any aspect of a child support order that cannot
be modified under the law of the issuing State.
[See the Uniform Act, 611(c).]
NOTE: The official comments to the Uniform Act
offer the "age of emancipation" as an example of
a nonmodifiable aspect of a child support order.
þ Within 30 days of the date a tribunal in your State
modifies the order, the prevailing party is to file a
certified copy of the modified order with the tribunal
that issued the original order and with every tribunal
that has previously registered the order.
NOTE: The 30 day period is taken from 611(e) of the
Uniform Act. Your State may provide for a different
time period. The Uniform Act does not specify whether
these are "calendar" or "working" days.
BP: It is recommended that the modifying tribunal's
IV-D agency mail the prevailing party a certified copy
of the registered order. To ensure that this filing
is accomplished, it is also recommended that this IV-D
agency file certified copies with the appropriate
tribunals.
MEO6
Q. When a IV-D agency in State A is notified that its
tribunal's order has been modified by a UIFSA tribunal in
State B, what action should the IV-D agency in State A
take?
A. BP: State A's IV-D agency should file a copy of the
modification with its tribunal. State A should not take
formal action to suspend its order but case records should
be updated to reflect the modified order. (The same answer
applies if the IV-D case in State A is closed.)
MEO7
Q. How will the responding State tribunal determine which
aspects of an order are not modifiable under the law of the
issuing State?
A. The Interstate Referral Guide (IRG) is being revised to
provide information as to nonmodifiable aspects of orders
under each State's law.
MEO8
Q. If the underlying divorce order is silent as to the support
obligation, is the appropriate action under UIFSA
establishment or modification?
A. BP: In cases where the underlying divorce order is silent
as to the support obligation, the appropriate action under
UIFSA is establishment. However, if the underlying order
expressly sets a support obligation at zero dollars, the
appropriate action would be a modification. If a
modification action is appropriate, a CEJ determination
must be made to determine the appropriate tribunal (issuing
or responding) to hear the action.
MEO9
Q. If the support issue is reserved by the court entering the
divorce order, is the case an establishment case or a
modification case?
A. BP: If the support issue is reserved, the answer depends
upon the reason why it was reserved. If the support issue
was reserved due to lack of personal jurisdiction, it is an
establishment case. If there was jurisdiction, but the
support issue was reserved for some other reason (e.g.,
lack of income information) the "best practice" is to try
to establish an order locally. If that will not work, note
(in the order) the reason why the issue of support was
reserved and treat the case as an interstate establishment
case.
MEO10
Q. What procedures should be followed if the basis for
modification is review and adjustment?
A. BP: In that scenario, concurrently issue the notice of
registration with the mandatory review and adjustment
notices, rather than the motion to modify.
MEO11
Q. Can a responding State without CEJ add a medical support
provision to an existing order?
A. No, adding a medical support provision to an existing order
requires a modification of the existing order. Because of
this, the initiating State will need to have the order
modified in the CEJ forum.
MEO12
Q. Does a change in payee (e.g., the child leaves the
household of the legal custodian/payee) require a
modification?
A. BP: Generally, a change in payee will require a
modification. A formal modification is not required if the
responding State's law provides an administrative process
for changing payee.
NOTE: A change in payee may impair the ability of the
collecting agency to distribute collections. For example,
the child support order provides a named individual as the
payee, but due to a change in physical custody, a different
entity/individual is entitled to the payment.
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