CS 722P Delinquency Based Income Withholding
10/22/97 Revised
06/02/23 Training Completed 06/16/23 Last Reviewed 09/01/26
45 CFR 303.100; U.C.A. 26B-9-303, 26B-9-304, 26B-2-305
Statutory Authority
U.C.A. 26B-9-304 states:
“(1) With regard to obligees or obligors who are
receiving IV-D services, each child support order issued or modified on or
after October 13, 1990, subjects the income of an obligor to immediate income
withholding as of the effective date of the order, regardless of whether a
delinquency occurs unless:
(a) the court or administrative body that entered the
order finds that one of the parties has demonstrated good cause not to require
immediate income withholding; or
(b) a written agreement that provides an alternative
arrangement is executed by the obligor and obligee, and by the office, if there
is an assignment under Section 35A-3-108, and reviewed and entered in the
record by the court or administrative body.
(2) For purposes of this section:
(a) ‘good cause’ shall be based on, at a minimum:
(i) a determination and explanation on the record by the
court or administrative body that implementation of income withholding would
not be in the best interest of the child; and
(ii) proof of timely payment of any previously ordered
support;
(b) in determining ‘good cause,’ the court or
administrative body may, in addition to any other requirement that it
determines appropriate, consider whether the obligor has:
(i) obtained a bond, deposited money in trust for the
benefit of the dependent children, or otherwise made arrangements sufficient to
guarantee child support payments for at least two months; and
(ii) arranged to deposit all child support payments into
a checking account belonging to the obligee or made arrangements insuring that
a reliable and independent record of the date and place of child support
payments will be maintained.
(3) An exception from immediate income withholding shall
be:
(a) included in the court or administrative agency's
child support order; and
(b) negated without further administrative or judicial
action:
(i) upon a delinquency;
(ii) upon the obligor's request; or
(iii) if the office, based on internal procedures and
standards, or a party requests immediate income withholding for a case in which
the parties have entered into an alternative arrangement to immediate income
withholding pursuant to Subsection (1)(b).
(4) If an exception to immediate income withholding has
been ordered on the basis of good cause under Subsection (1)(a), the office may
commence income withholding under this part:
(a) in accordance with Subsection (3)(b); or
(b) if the administrative or judicial body that found
good cause determines that circumstances no longer support that finding.
(5)(a) A party may contest income withholding due to a
mistake of fact by filing a written objection with the office within 15 days of
the commencement of income withholding under Subsection (4).
(b) If a party contests income withholding under
Subsection (5)(a), the office shall proceed with the objection as it would an
objection filed under Section 26B-9-305.
(6) Income withholding implemented under this section is
subject to termination under Section 26B-9-308.
(7)(a) Income withholding under the order may be
effective until the obligor no longer owes child support to the obligee.
(b) Appropriate income withholding procedures apply to existing
and future payors and all withheld income shall be submitted to the office.”
U.C.A. 26B-9-305
states:
“(1) With regard to child support orders
issued prior to October 13, 1990, and not otherwise modified after that date,
and for which an obligor or obligee is receiving IV-D services, the office
shall proceed to withhold income as a means of collecting child support if a
delinquency occurs under the order, regardless of whether the relevant child
support order includes authorization for income withholding.
(2) Upon receipt of a verified statement or
affidavit alleging that a delinquency has occurred, the office shall:
(a) send notice to the payor for income
withholding in accordance with Section 26B-9-306; and
(b) send notice to the obligor under Section
26B-9-207 that includes:
(i) a copy of the notice sent to the payor;
and
(ii) information regarding:
(A) the commencement of income withholding;
and
(B) the opportunity to contest the
withholding or the amount withheld due to mistake of fact by filing a written
request for review under this section with the office within 15 days.
(3) If the obligor contests the withholding,
the office shall:
(a) provide an opportunity for the obligor to
provide documentation and, if necessary, to present evidence supporting the
obligor's claim of mistake of fact;
(b) decide whether income withholding shall
continue;
(c) notify the obligor of its decision and the
obligor's right to appeal under Subsection (4); and
(d) at the obligor's option, return, if in
the office's possession, or credit toward the most current and future support
obligations of the obligor any amount mistakenly withheld and, if the mistake
is attributable to the office, interest at the legal rate.
(4)
(a) An obligor may appeal the office's
decision to withhold income under Subsection (3) by filing an appeal with the district
court within 30 days after service of the notice under Subsection (3) and
immediately notifying the office in writing of the obligor's decision to
appeal.
(b) The office shall proceed with income
withholding under this part during the appeal, but shall hold all funds it
receives, except current child support, in a reserve account pending the
court's decision on appeal. The funds, plus interest at the legal rate, shall
be paid to the party determined by the court.
(c) If an obligor appeals a decision of the
office to a district court under Subsection (4)(a), the obligor shall provide
to the obligee:
(i) notice of the obligor's appeal; and
(ii) a copy of any documents filed by the
obligor upon the office in connection with the appeal.
(5) An obligor's payment of overdue child
support may not be the sole basis for not implementing income withholding in
accordance with this part.”
When immediate income withholding is not in effect due to a good cause
finding or a written agreement, a party may subsequently initiate income
withholding, if appropriate. Refer to CS
721P Immediate Income Withholding and CS 723P Good Cause Finding or Written
Agreement for more information.
Also, Federal regulations at 45 CFR 303.100 require that in
addition to the amount to be withheld to pay the current month’s obligation,
the amount to be withheld must include an amount to be applied toward
liquidation of arrears (refer to CS 720P General Information for possible exceptions). However, before an arrears payment may be
included in a “Notice to Withhold,” the noncustodial parent (NCP) must be given
the opportunity to contest the amount of past-due support on the case. The NCP is informed of the past-due amount in
the “Annual Notice of Past-due Child Support.”
Refer to CS 802P Annual Notice of Past-due Child Support, General for
more information.
EXCEPTION: Arrears that
have been previously adjudicated may be collected by income withholding before an
“Annual Notice” has been generated.
Procedures – Intake, Pre-Order
At the time a case is first opened or reinstated on ORSIS, the CSS
Intake worker or pre-order agent is responsible for reviewing the child support
order, if one exists, to determine if the case qualifies for immediate income
withholding. Likewise, when CSS establishes an administrative or judicial
order, the Pre-order Agent is responsible for determining if the case qualifies
for immediate income withholding.
Procedures – Post-Order
If a delinquency exists on a case that did not qualify for
immediate income withholding, proceed with the steps listed below.
1.
If the alleged delinquency accrued prior to opening a case and the amount of the delinquency meets
auto-enforcement criteria, ORSIS will automatically generate an “Annual Notice”
to the NCP. This notice gives the NCP 30
days to contest the amount of past-due support listed in the notice. You must allow the 30-day response period to pass
before you take any action to enforce on the arrears, including income
withholding.
2.
If, during the 30-day response period, the NCP contests the amount
of past-due support and claims that it is less than the amount of support due
for one month, resolve the amount of delinquency before proceeding with Step 4. However, if during the 30-day response period
the NCP does not contest the amount of past-due support and does not claim that
the amount of past-due support is less than the amount of support due for one
month, proceed immediately with Step 4.
For additional information, refer to CS 802P-2 Annual Notice of Past-due
Child Support, Contesting Options and Reviews.
3.
If the delinquency accrued after
opening a case on ORSIS and an “Annual Notice” has already been generated,
and the amount of past-due support is equal or greater to the amount of support
due for one month, immediately proceed with Step 4.
4.
Code ORSIS to indicate that the case now qualifies for income withholding
and allow automated income withholding to occur.
5.
The next day ORSIS will automatically generate separate
withholding packets to the employer and to the NCP. Both will contain the “Automated Notice to
Withhold” and respective cover letters. The NCP’s packet will also contain the
“Written Response to Contest Income Withholding” that provides the NCP with
information regarding the opportunity to contest the withholding based on a mistake
of fact, e.g., individual claims he is not the NCP on the case.
The review and appeal processes are the same for orders issued
prior to