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Handbook on Child Support Enforcement Answers to Your Questions Department of Health and Human Services |
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V. ENFORCEMENT
A main objective of the Child Support Enforcement (CSE) Program is to make sure that child support payments are made regularly and in the correct amount. While noncustodial parents who are involved in their children's lives are usually willing to pay child support, lapses of payment do occur. When they do, a family's budget can be quickly and seriously threatened. Some noncustodial parents do not pay regularly, and some spend a lot of effort and energy evading their responsibility for their children. The anxiety the custodial parent feels when payments are not regular can easily disrupt the family's life. For this reason, Congress decided that immediate income withholding should be included in all child support orders. (States must also apply withholding to sources of income other than wages, such as commissions and bonuses; and to worker's compensation, disability, pension, or retirement benefits.) For child support orders issued or modified through state CSE Programs, immediate income withholding began on November 1, 1990. Immediate income withholding began January 1, 1994 for all initial orders that are not established through the CSE Program. The law allows for an exception to immediate income withholding if the tribunal finds good cause, or if both parents agree to an alternative arrangement. In these cases, if an arrearage equal to one month's payment occurs, that will automatically trigger withholding. If the noncustodial parent has a regular job, income withholding for child support can be treated like other forms of payroll deduction, such as 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, moves or changes jobs frequently, or works for cash or commissions, 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, freezing of bank accounts, orders to withhold and deliver property to satisfy the debt, passport denial, or 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. All states have agreements with financial institutions doing business in their state for the purpose of conducting a quarterly data match known as the Financial Institution Data Match (FIDM). The purpose of FIDM is to identify accounts belonging to non-custodial parents who are delinquent in their child support obligations. Once identified, these accounts may be subject to liens and levies issued by state or local child support enforcement agencies. An institution doing business in two or more states (multi-state financial institution) has the option to conduct the quarterly data match with OCSE or with the states where the institution does business. States are responsible for issuing levies to the financial institutions to collect the past-due child support. Under the Passport Denial Program, states certify cases in which an obligor owes more than $5,000 in unpaid child support. The Office of Child Support Enforcement transmits the information to the Department of State so that a U.S. passport will not be issued, or renewed, to someone who is not supporting his or her children. Passports can be seized if the holder requests a change, such as a new address or an additional dependant. In some cases, the CSE agency can help to obtain a Federal warrant. The Department of State can then start procedures to revoke the passport or arrest the obligor at the border when he or she returns to the United States. If actions available through the CSE program are not successful, state CSE agencies can take cases to court for other enforcement actions such as show cause hearings, contempt of court proceedings, and criminal prosecutions.
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. However, 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. Even so, the presence of a property lien may encourage the noncustodial parent to pay the past-due child support in order to get 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. Can I have the income withholding applied to my existing child support order? Yes, you can apply for the income withholding through your local CSE office or your attorney. Though there are limits on how much of a person's check can be withheld, income 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, the attorney and staff in the CSE agency 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 income withholding work in this case? Yes. States must recognize the income withholding orders from other states, and continue the income 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 every state's 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 state CSE agency staff will send the employer a withholding notice which is binding on the employer. An employer who fails to withhold the income in accordance with the notice is liable for the accumulated amount that should have been withheld from the noncustodial parent's income. Employers who have questions about income withholding can find information and contacts on the Office of Child Support Enforcement (OCSE) website: The children's father works irregularly and is paid in cash. Income 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. States can suspend or revoke 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 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. Why won't the child support office put a lien on it? Most states will not 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. Can past-due child support be taken from the state income tax refund? All states with state income tax must have laws that require the offset of state income tax refunds to collect past-due child support. The money first goes to satisfy current support due for that month, next for past-due support owed to families, and finally to states to repay cash assistance provided the family. 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. Collections from Federal tax offset must go first to repay the state and Federal governments for assistance provided before they are distributed to families who are owed past-due support. Congress has been considering a proposal for distributing collections to pay family arrearages before money owed the government is paid. 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 income withholding requirements as other public or private employees. If a service member is not meeting a support obligation, an income 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. There is information on the OCSE website at: http://www.acf.hhs.gov/programs/cse/fct/militaryguide2000.htm DFAS also has useful child support information: To get medical coverage for a child of a military member, the child must be enrolled in the Defense Enrollment Eligibility Reporting System (DEERS). There is information available at: http://www.tricare.mil/deers/general.cfm Contact the Defense Manpower Data Center support office for enrollment information. 800-334-4162 (California only) 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 income withholding, and there is a central payment office for each Department, so moves within the Department should not affect an income 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 income withholding. If she has moved to a different Department, the Federal Parent Locator Service (FPLS) can provide her new location. My child's father is a contractor who receives payments from the Federal Government. Can the Federal payments be seized for back child support? Various types of payments can be seized through Administrative Offset to pay child support. They include both recurring and one-time payments. Types of payments that can be intercepted include payments to private vendors who perform work for a government agency, federal retirement payments, and relocation and travel reimbursements owed to federal employees. Some payments cannot be intercepted through this program. They include Veterans Affairs (VA) disability benefits, federal student loans, some Social Security payments, Railroad Retirement payments, Black Lung benefits, and payments made under certain programs based on financial need, or those that are excluded by the head of the Federal agency that administers them. A case is eligible for an Administrative Offset when the non-custodial parent owes at least $25 in past due support and is at least 30 days delinquent in his or her child support payments. People who owe child support debts subject to Administrative Offset will be notified via a Pre-Offset Notice, which also includes information about the Federal Tax Refund Offset and Passport Denial programs. The Pre-Offset Notice also provides information about how to contest the debt amount. States must submit to OCSE those cases that meet the criteria for the Federal Tax Refund Offset Program. The states use the same process to submit to the Administrative Offset Program. When a match occurs between the records of people who owe child support debts and the payment records for Federal payees, the Financial Management Service (FMS) in the Department of the Treasury will seize the amount and transmit it to the state, through OCSE. FMS will also send a notice to the non-custodial parent explaining the type of offset that occurred and referring him or her to the appropriate child support agency for further information. The father of my child is in jail. Can I get support? Past-due support may accumulate while the father is in jail. But unless he has assets, such as property, bank accounts, or any income such as wages from a work-release program, it is unlikely that support can be collected while he is in jail. You might write to the warden of the prison and ask if any provision is made for a prisoner to provide support for his children. Depending on state law, your support order may be modified so that payment is deferred or forgiven until he is released and working. (Some states will do this so that the arrearage when he is released is not so great that he might hide, but will seek work and resume payments.) If he is in a Federal Correctional Facility, in addition to seizing available outside assets and income, if any, there also is a possibility that you can get child support payments from the inmate's prison account. According to the Bureau of Prisons instruction, the withdrawal of funds from an inmate's account is strictly voluntary. Child support obligations are listed as the fourth priority of funds that can be withdrawn. You, or your caseworker, will need to find out who the inmate's case manager is and write a letter to that person. Any correspondence to the case manager needs to specifically indicate that child support obligations are to be considered pursuant to the Inmate Financial Responsibility Program. If funds are not received, it may be due to the fact that the inmate has refused to make payment, or that the inmate is making payments that have priority over the child support payments. Contact with the case manager can verify whether or not the inmate is cooperating and willing to meet the child support obligations. (The Bureau of Prisons website has information about locating a prisoner: http://www.bop.gov/) 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 you may have to present evidence of the debt to a court before collection procedures can start. While the debt is being verified, 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 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 to establish regular payment? As mentioned at the beginning of this section, property liens and attachments might work. In certain cases, state law also authorizes that the parent be required to post security, bond, or other guarantees to cover support obligations. These guarantees may be in the form of money or property. Ask your enforcement caseworker if other forms of payment 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. An order for support specifies how support is to be paid and gifts or payments made outside the order are generally not considered a credit against the ordered child support amount. If he is not paying as ordered, check with the CSE agency about enforcing the order. If you do not have a support order, you can talk with staff in the CSE agency about establishing one. 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 Federal investigators with help from the referring child support agency. The U.S. Attorney that has jurisdiction in your area makes the final decision about whether to prosecute. 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. State agency addresses and phone numbers are listed at the end of this Handbook. They are also provided on our website, where we try to post changes as soon as we learn of them: http://www.acf.hhs.gov/programs/cse/extinf.htm In Section VI: Working Across Borders, there is information about Federal enforcement in cases in which the noncustodial parent lives in another state and is actively evading a support obligation. My children are over 18 and don't get child support any more, but there is still a $10,000 arrearage owed to me for support that was never paid. Will the CSE office collect that money for me? State statutes of limitations determine how long the CSE Office can try to collect on a child support debt. Within this period, the CSE office is required to collect verified back support. Ask your CSE office for more information. Can my children be provided for if my ex-husband dies? In most cases, the estate of the deceased noncustodial parent may only be responsible for satisfying any past-due support. In addition, the child may already be a beneficiary of that estate. See your local CSE office for assistance or guidance on filing an appropriate claim in probate court. Continued future support should be planned for by both parents and, in addition to verifying eligibility for Social Security and similar survivor benefits, parents should consider drafting appropriate wills and securing appropriate life insurance policies. My ex-husband inherited a house and a sizeable amount of money from his parents. He already had some income and property. Now he doesn't have to work, and he put everything into his brother's name and got his child support reduced to the state minimum. His action may constitute a “fraudulent transfer.” Check with the state CSE agency to see if it would be considered as such under state law and if the property transfer can be voided. In addition, courts can establish a support order based on imputed income -- the amount that someone would be able to pay if he or she had not voluntarily lowered his income or transferred his or her assets. Your CSE agency can provide information about a possible review of the order if the amount was reduced because of his actions. My case is difficult and the state is having a hard time collecting from my ex-spouse. I'm thinking about contacting a private collection agency. What information is available about them? A private collection agency (PCA) is a privately owned, for-profit business that, for a fee, helps parents collect child support. OCSE recognizes a parent's right to choose to work with a PCA. However, parents should make informed choices. If you hire a PCA, make sure that you understand your rights and obligations under the contract before you sign. If you have access to the internet at home or at a public library, OCSE has developed an Information Memorandum that includes information that you might consider if you are thinking of using a PCA. http://www.acf.hhs.gov/programs/cse/pubs/2002/best/ Do I have to close my case with the state CSE agency to hire a PCA? The state cannot require you to close your case simply because you hired a PCA. A PCA may require that you close your case with the state as a condition of your contract. If you do close your case with the state, the following collections services may not be available: tracking changes in the noncustodial parent's employment through the National Directory of New Hires; interception of state and Federal tax refunds and lottery winnings; passport denial; and license revocation or suspension. |
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