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UIFSA 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

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?

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

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.

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

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?

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

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?

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

A. Under UIFSA (303), the general rule regarding choice of

law is that the responding State’s law controls.

CL2

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

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

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

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

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

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.]

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.

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

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

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©.]

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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