PAYMENT METHODS ON PAST-DUE SUPPORT

CS 710P Limitation on the Collection of Arrears

10/22/15 Revised 09/03/24 Training Completed 09/17/24 Last Reviewed 10/02/24

45 CFR 302.36, 45 CFR 303.11; Utah Code 26B-9-108, 26B-9-403, 46-1-1 et seq., 78B-5-202, 81-6-106, 81-7-102, 81-7-103; R527-254

Introduction

Pursuant to Administrative Rule R527-254 Limitation on Collection of Arrears, the Office of Recovery Services (ORS) will not collect child support, spousal support, or child care arrears that accrue for those time periods when there was not an open IV-D case.  This limitation includes time periods when a IV-D case was previously open.  If an applicant wants ORS to collect those arrears, s/he must obtain a determination of arrears for specific time periods from a judicial court.  A determination of arrears is a court ruling as to what the arrears balance is on a support order (judicial or administrative).  Since child support under any Utah support order is deemed a judgment pursuant to Utah Code 81-7-102, the District Court is the finder of fact on the remaining balance of an order that includes child support.

ORS will only collect current support from the date of application or services prospectively unless a party to the case has obtained an order with a determination of the arrears that accrued before the case was opened or through a stipulation that ORS can facilitate.  Either party, the noncustodial parent (NCP) or custodial parent (CP), may file an action with the District Court to obtain a ruling with a determination of the arrears that accrued prior to the IV-D case being opened with ORS. 

Arrears will be treated the same way, regardless of whether or not the case is new or reinstated. ORS will not collect support arrears that accrued before the case opened.  This applies to both new and reinstated cases.  If you receive an application on a case that was previously open with ORS, only collect current support beginning with the date of application or date of services.  ORS will collect arrears if the NCP or CP provides a determination of arrears that is dated at least within one year previous to the date of services or application.  The parties may also obtain a determination of arrears while a IV-D case is open. 

On an existing or a reinstated case, if a CP has forgiven all or some of a non-IV-A arrears debt with a signed and notarized written statement, do not add a non-IV-A arrears debt to an existing or a reinstated case for the same time period without a judgment or determination of arrears from a judicial court or a completed “Stipulated Arrears” form. For procedures and more information on forgiveness of arrears, refer to CS 700P-3 Discharge of IV-A Arrears/Forgiveness of Non-IV-A Arrears.

All debts and obligations should be zeroed out upon case closure.  If the balance was not zeroed out when the case was previously closed, ORSIS may have automatically reinstated the arrears balance upon reinstatement of the case.  When the case reopens it should be reviewed to zero out any debt balance that may have been automatically reinstated by ORSIS.

Pursuant to Utah Code 81-7-103, ORS may be prevented from collecting arrears for past due child support or alimony if there is an order that recognizes a contingency agreement between the CP and his/her attorney for the collection of a domestic relations debt.  An order acknowledging the existence of a contingency arrangement/agreement does not prevent ORS from continuing to collect on any debt owed to the State of Utah for TANF arrears.

Forms Overview

1. Notice to Applicant Concerning Arrears. This notice is sent to an applicant when s/he has filled out the Statement of Arrears portion of the previous version of the application. This letter notifies an applicant that the “Statement of Arrears” is no longer accepted as proof of an arrears debt. It may also be used to explain the options an applicant can take concerning his/her arrears.

2. Application for Services Packet. This is the complete application packet that must be completed by an applicant before a case can be opened.

Statement of Arrears

Effective July 6, 2015, ORS no longer accepts the Statement of Arrears section from the previous version of the Application for Services form.  If the application is received and it includes a “Statement of Arrears,” the case must be opened on ORSIS and the “Notice to Applicant Concerning Arrears” letter must be sent to the applicant to inform him/her of the changes to ORS policy concerning the collection of arrears.

Determination of Arrears

Utah Administrative Rule R527-254-4 provides that:

“(3)(a) if a determination of arrears is issued while there is an open IV-D services case and submitted to ORS for enforcement on the existing case; or

(b) if a determination of arrears is issued within one year prior to the date ORS receives an Application for Child Support Services that contains sufficient information to open a IV-D services case, ORS will enforce the arrears balance remaining due as reported by the applicant for services.” (Emphasis added.)

After the case is opened, the NCP/CP may provide ORS with a judicial ruling that determines the arrears of all support arrears prior to the most recent opening of a IV-D case with ORS.  The ruling that determined the arrears balance must have been issued within one year prior to the date of the application for services.  The parties are also able to obtain a determination of arrears while a IV-D case is open. ORS will enforce a ruling that determines an arrears balance for the same duration as applied to child support orders and sum certain judgments for past due support pursuant to Utah Code 78B-5-202:

“(6)(a) A child support order or a sum certain judgment for past due support may be enforced:

(i) within four years after the date the youngest child reaches majority; or

(ii) eight years from the date of entry of the sum certain judgment entered by a tribunal.

(b) The longer period of duration shall apply in every order.

(c) A sum certain judgment may be renewed to extend the duration.”

You may check to see if the determination is available online on Courts XChange.  Once you receive a copy of the ruling from the NCP/CP or Courts XChange, forward it to the Central Imaging Unit (CIU).  In Content Manager, reattribute it to the Case Folder.

The “Application for Services” form must contain sufficient information to open or reinstate the case, in order to meet the one year deadline (see R527-254-4(3)(b) above).  If the determination of arrears is more than one year old at the time that the Office of Recovery Services (ORS) receives an application with sufficient information to open or reinstate a case, do not add the arrears to ORSIS and notify the party submitting the determination of arrears that ORS cannot enforce the order pursuant to R527-254-4.

“(4) If a determination of arrears is issued during a time period when there is not an open IV-D case with ORS and more than one year has elapsed prior to ORS receipt of the Application for Child Support Services, ORS will not enforce on any remaining balance of those arrears. The amount remaining due on those arrearages must be adjudicated and determined before ORS will begin enforcement actions.”

Notify the senior agent to add the correct debt and balances to ORSIS.     

NOTE:  If a judicial order that contains a determination of arrears is received in intake, the intake worker should not add the arrears debt to ORSIS.  Instead, s/he should document receipt of the order in the case level narratives and forward the case to the appropriate function worker to add the arrears debt to ORSIS.

If the order is received and there is a lapse in time between the date of the judicial determination of arrears and the date of the “Application for Services” form, only collect and enforce on those arrears that are covered under the judicial determination of arrears or those that accrue on ORSIS.  To help facilitate a stipulation of arrears owed between the NCP and CP during the lapse in time between the date of the judicial determination of arrears and the date of the Application for Services, you may provide the Stipulated Arrears pre-print form for the parties to fill out.  The stipulation must be signed by both parties and notarized.  If the parties cannot agree on the remaining balance of the arrears during those months, do not load any arrears.  Inform the parties that we can take no further action on their behalf concerning the arrears unless there is a determination of arrears from a judicial court.  For more information on the form, refer to subsection No Determination of Arrears, below. 

EXAMPLE:  The NCP/CP obtains a judicial order that contains a determination of arrears for $1,200.00, dated February 15, 2015.  The order covers arrears that accrued beginning November 1, 2014 through February 29, 2015).  The CP applies for services with ORS and sends in an Application for Services on July 10, 2015.  The case is opened on ORSIS and the current support debt is added to the case effective July 1, 2015.  An arrears debts balance is also added for November 1, 2014 through February 2015, $1,200.00 per the order received.  No arrears balance is added to the case for the time-period of March 1, 2015 through June 30, 2015.  Only the arrears balance established in the determination of arrears (minus any payments that may need to be credited during a review process) and the debt, effective July 1, 2015 are added to this case. 

Later, if the NCP/CP wants to have the office collect the arrears balance that accrued during the time-period of March 1, 2015 and June 30, 2015, they must either obtain another judicial determination of arrears or agree to the arrears balance and be willing to stipulate to the arrears owed using the “Stipulated Arrears” form. 

Review Process

It is the responsibility of the NCP and CP to maintain a record of support due and paid for those time-periods when there is not an open ORS case.  Once a determination of arrears has been submitted to ORS, the parties may submit documentation or proof of payments made towards that balance identified in the order. If this occurs, refer to CS 072P In-Kind Support and Proof of Direct Payments.

If there is an arrears debt balance on a case, the NCP will automatically receive the “Annual Notice of Past-due Child Support” form.  For additional information on this notice, refer to CS 802P Annual Notice of Past-due Child Support, General.

During the review process of support paid, ORS will accept the following items as proof of payment:

1. Copies of cancelled checks, front and back;

2. Payment receipts from the ordered recipient of the payments;

3. A notarized statement from the ordered recipient acknowledging additional payments, including the amount of the payments and the date of the payments; and,

4. With ORS Director (or designee) approval, other forms of payment documentation which clearly show the amount paid, the date of the payment, proof that the payment was received by the ordered recipient, and clear documentation of the purpose of the payment.

NOTE:  A CP may forgive some or all of a non-IV-A arrears debt with a signed and notarized written statement. For procedures and more information, refer to CS 700P-3 Discharge of IV-A Arrears/Forgiveness of Non-IV-A Arrears.

ORS will not accept the following items as proof of payment:

1. Receipts for purchases in lieu of payments;

2. Agreements for services provided in lieu of payments;

3. Receipts for payments made to a third-party in lieu of payments to the recipient;

4. Statements showing bank transfers where the recipient’s account is not clearly identifiable as the ordered recipient; and,

5. Any form of documentation (including the acceptable items stated above as proof of payment) that does not clearly show the amount paid, the date of the payment, proof that the payment was received by the ordered recipient, and clear documentation of the purpose of the payment.

No Determination of Arrears

If neither of the parties submits a determination of arrears, the parties can take one of the following actions:

1. No further action.  ORS will continue to collect the current support debt and any arrears that accrue on ORSIS while there is an open case.  If the case is reinstated, make sure all debt balances that automatically reinstate on the case are ended.

Only add debts to the case based on a valid child support order beginning with the month of the date the application for services was received in ORS or the month the CP started receiving IV-A services. 

EXAMPLE:  A support order is dated February 9, 2015 and ORS received an “Application for Services” in May 2015.  The debt is added to ORSIS starting in the month of May 2015.  No arrears debts are added to the cases for the months of February-April. 

If the order on a case is modified and the current support amount is modified retroactive to a date prior to the case being opened on ORSIS, only adjust the debt back to the month that ORS received the “Application for Services,” which successfully opened the case.

EXAMPLE:  ORS received an Application for Services in May 2015 and a case is opened.  The NCP and CP are in the process of modifying their current child support order of $200.00 per month.  The support order modification is finalized on July 15, 2015 and it modifies the current support amount to $350.00 per month, effective January 1, 2015.  The debt is modified on ORSIS, effective May 1, 2015 (the date the application was received in ORS).  Do not add an arrears debt balance to the case for January-April 2015. 

If a first-time support order occurs after the IV-D case has opened, you may add debts back to the date of application or to when the child support became effective, whichever is later.  If this occurs on a IV-A case, go back to the month that the CP began receiving benefits.  If the first-time judicial support order includes a judgment for arrears (not that ongoing child support is effective from a specified month), add the arrears debt as a sum-certain judgment. 

EXAMPLE 1:  ORS receives an application dated April 1, 2015.  There is not an order that orders child support.  On July 15, 2015, the CP provides a copy of the divorce decree dated July 10, 2015.  The divorce decree orders ongoing child support effective May 1, 2015.  Add CRS debts back to May 2015 (the month of the date that child support became effective) since the support became effective after the date of the application.

EXAMPLE 2:  ORS receives an application dated April 1, 2015.  There is not an order that orders child support.  On July 15, 2015, the CP provides a copy of the divorce decree dated July 10, 2015.  The divorce decree orders ongoing child support effective January 1, 2015.  Add debts back to April 2015 (the month of the date on the application) since the applicant did not apply for ORS services until April 2015.

EXAMPLE 3:  ORS receives an application dated April 1, 2015.  There is not an order that orders child support.  On July 15, 2015, the CP provides a copy of the divorce decree dated July 10, 2015.  The divorce decree orders ongoing child support effect June 1, 2015 and includes an arrears judgment for the time period of September 2014 through May 2015.  Add debts back to June 2015 (the month of the date that child support became effective) and load the arrears judgment since it was ordered after the date of application. 

2. Go to a judicial court to obtain a determination of arrears.  If the NCP or CP inquires about arrears that accrued when there was not an open case with ORS, inform him/her of the changes made to policy pursuant to R527-254.  For additional information, refer to subsection Determination of Arrears, above.  If the current child support order is an administrative order, the NCP/CP will be required to register the administrative order with the court in order to have the court determine the arrears owed.

If either of the parties requests a payment history for those time periods when there was an open case with ORS, you may provide a payment history to them to assist them in obtaining a court ruling that determines the arrears balance.  Send the request to your team manager to run a Case Account History report to provide to the individual.

3. Stipulate.  As an alternative to going to court, ORS may facilitate a stipulation.  If both parties agree to the arrears balance owed and are willing to stipulate to that amount, you may provide the “Stipulated Arrears” form for them to complete.  The stipulation must be signed and notarized by both parties.  The form must be completed while a IV-D case is open with ORS.  If the applicant closes the case, the arrears will be removed.  If the case is reinstated, do not allow the parties to use that same agreement.  If requested, send a new form as the stipulation process must be started over.

First, attempt to have the parties come to the office to fill out, sign, and to have the stipulation notarized.  If the CP is unable to come to the office, mail the form to the CP.  Instruct the CP to fill out the form and to get his/her portion of the notary block completed. 

If the CP returns the stipulation to the office, forward them to CIU to be imaged.  Send a copy of the form to the NCP or have him/her come into the office.  The NCP must sign and notarize his/her section of the notary block if s/he agrees.  If the CP sends in the form by mail, the incomplete Stipulated Arrears will be sent to your Team Mail.  Print out the Stipulated Arrears form and send it to the NCP or have him/her come into the office.  The NCP must sign and notarize his/her section of the notary block if s/he agrees.  When you receive the stipulation, reattribute it to the Case Folder. 

If the NCP returns the completed “Stipulated Arrears” form to the office, forward them to CIU to be imaged.  If the NCP returns the completed Stipulated Arrears form by mail, the Stipulated Arrears form will be sent to your Team Mail.  When you receive the completed stipulation, reattribute it to the Case Folder.  If the NCP does not agree with the arrears balance or does not return the form, do not proceed with loading the arrears debt.  Inform the CP that the NCP either does not agree with the arrears balance or did not return the form.

Once the form is complete with notarized signatures from both parties, refer the case to the assigned senior agent to add the arrears debt to the case. 

At a minimum, the form must provide the following:

a. The amount due for a specific month and year;

b. The amount paid for that specific month and year;

c. The total amount due;

d. The total amount paid;

e. The arrears balance; and,

f. Notarized signatures for both parents.

If the parties cannot agree to the arrears balance owed, inform them that we cannot take further action on their behalf concerning the arrears balances owed, unless they obtain a judicial ruling that determines the arrears balance.

NOTE:  The Stipulated Arrears from form may also be used for arrears on spousal support and the parties must specify spousal support on the form.  If the parties want to stipulate for both child support and spousal support, they must complete two separate forms.  They must specify on the forms if the claimed arrears are for child support or spousal support.

Intergovernmental Cases

Utah will enforce any current support and arrears balances requested on incoming intergovernmental cases by another state, tribe, or country, pursuant to the following:

45 CFR 302.36 Provision of services in intergovernmental IV-D cases.

“(a) The State plan shall provide that, in accordance with § 303.7 of this chapter, the State will extend the full range of services available under its IV–D plan to:

(1) Any other State;

(2) Any Tribal IV–D program operating under § 309.65(a) of this chapter; and

(3) Any country as defined in § 301.1 of this chapter.”

Contingency Agreements for the Collection of Past Due Child Support or Alimony in Judicial Orders

Utah Code 81-7-103 Collection fee for past due child support or alimony.

“(1) As used in this section:

(a) “Debtor” means a person obligated or allegedly obligated to pay a domestic relations debt.

(b) “Domestic relations debt” means an obligation or alleged obligation to pay past due child support or alimony.

(2)(a) A court shall order the amount described in Subsection (2)(b) be paid, if:

(i) the court issues a judgment requiring the payment of a domestic relations debt by the debtor;

(ii) imposing a collection fee on the debtor or in relation to the domestic relations debt is not prohibited or otherwise restricted by another federal or state law; and

(iii) the person owed the domestic relations debt has a contingency arrangement with an attorney to collect the domestic relations debt.

(b) If the conditions of Subsection (2)(a) are met, a court shall order payment of:

(i) the principal amount due;

(ii) applicable interest . . .

(5)The Office of Recovery Services may not collect an order issued pursuant to Subsection (2).”  (Emphasis added.)

The Office of Recovery Services may not collect on a judicial order for past due child support or alimony if the order recognizes the existence of a contingency agreement between the CP and his/her attorney for the attorney to collect arrears for past due child support or alimony for the obligee.  However, the existence of a contingency agreement for the collection of a domestic relations debt does not preclude ORS from collecting on debt owed to the State of Utah for TANF arrears assigned to the State.  ORS may continue to collect on arrears owed to the State of Utah for periods of time the obligee received TANF.

If ORS receives a request to collect past due child support or alimony on a judicial order which recognizes the existence of a contingency agreement pursuant to Utah Code 81-7-103, or if an agent becomes aware that ORS is currently collecting on a judicial order which recognizes the existence of a contingency agreement pursuant to Utah Code 81-7-103, notify the requestor (if a request is made) or the custodial parent (if the agent becomes aware) that ORS must be provided with a new order from the court acknowledging that there is no longer a contingency agreement in order for ORS to begin collecting on any past due child support or alimony ordered by the court, with the exception of TANF arrears owed to the State of Utah.

If/when ORS is provided a new judicial order which both acknowledges that there is no longer a contingency agreement and contains a determination of arrears, notify the senior agent to add the ordered debt for past due support to ORSIS.  However, if the new judicial order only acknowledges that there is no longer a contingency agreement and does not contain a determination of arrears, ORS will only enforce ongoing support until ORS is provided a new order containing a determination of arrears.

If you have any questions on whether ORS may collect past due child support or alimony on an order recognizing the existence of a contingency agreement for collection of a domestic relations debt, consult with the assigned Assistant Attorney General (AAG) assigned to the case for further direction.