Enforcement
Domestic Relations Enforcement
Support orders may include two types of obligations:- Non-financial
- Financial
A financial obligation is the dollar amount an obligor must pay for support according to his/her court order, within the time-frame indicated by the support order. Most support orders are entered as a monthly support amount.
When an obligor fails to make payments in accordance with the support order or fails to meet the non-financial obligation, a delinquency, or non-compliance, occurs.
Delinquency Remedies
The PACSES computer reviews each support case for delinquency following a schedule built into its system. The availability of some remedies follows the date of the support order, while other remedies become available at set times throughout the calendar month. Some remedies must be started by a worker (contempt, for example, must be scheduled), while others begin automatically. Some remedies are brought into play without so much as a court order! The administrative remedies include:
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Judicial remedies (those requiring court orders) include:
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Credit Bureau Reporting
When case arrears are equal to or exceed two months of support, a notice of credit bureau reporting is automatically printed and sent to the defendant, giving the defendant 20 days to contest the submission. If there is no contest, the system will automatically report the arrears balance to the Credit Bureau, and will update that balance monthly.If, on the other hand, the defendant contacts the DRS within the 20 day period to contest, the submission will be reviewed - and either stopped, or allowed to continue depending on the outcome of the review. Once the arrears are reported, the defendant has 30 days to file a dispute directly with the credit bureaus - TransUnion, Experian, or Equifax. 23 Pa. C.S. §4303.
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Income Withholding
23 Pa. C.S. §4348(a), (b) and Pa.R.C.P. 1910.21(a) state that every order shall contain an immediate order for income withholding unless: (1) no overdue support exists or (2) the court finds there is no good cause for incoming withholding or there is an agreement by the parties in writing. In either case, the waiver is invalid if there is any overdue support.Income withholding is an automatic process performed by PACSES without the need of worker intervention. As soon as the system detects a valid support order and an employer, it issues the appropriate order to withhold income to the listed employer. Likewise, when the system detects a change in the amount of the order, generally as a result of a modification conference, it automatically issues the corrected withholding order.
If the system detects a new employer, it automatically issues a withholding order to the new employer. If the defendant has arrears, regardless of the cause, the system automatically re-issues the withholding order with an additional amount added toward the arrears.
Income withholding will also be initiated automatically for:
- Unemployment compensation benefits-both from within and outside of PA
- Workman’s compensation payments
- Retirement income
- Social Security disability and retirement
- Other earned or unearned income (such as pensions)
The two most misunderstood aspects of wage withholding by plaintiffs and defendants are:
- Definition of Arrears
- Pay Cycle Versus Monthly Obligation
Definition of Arrears
The support order states the amount of the support obligation in monthly terms, giving the effective date of the order, the due date of the first payment, and the amount of arrears. Arrears are generally created by the fact that, by law, the obligation commences not with the date of the conference or the order, but with the filing date of the complaint or petition.These arrears are defined by statute as “past due support.” Past due support - sometimes referred to as retroactive arrears - is collected systematically by adding an amount to the wage withholding order. The description in the order that arrears are “due in full immediately” is often misinterpreted by plaintiffs to mean that it must be paid forthwith. This language is a legal and accounting necessity to establish arrears at a specific point in time. This is so that if the support obligation, along with the scheduled amount toward arrears, is not paid in 30 days, the system automatically redefines all arrears as “overdue support,” making it subject to a variety of enforcement remedies.
A common mistake made by defendants is to assume that they have no responsibility for the obligation because their wages are to be attached. The defendant is always ultimately responsible for the obligation. Wage withholding orders commonly take up to six weeks to be in place. If the defendant fails to monitor his or her pay and to make the payments on his or her own until the withholding is reflected in the pay check, the probability of arrears shifting from “past due” to “overdue,” with all of its attendant remedies, is very real.
Pay Cycle Versus Monthly Obligation
The majority of defendants are paid every other week or 26 times per year. And most people are aware that this cycle produces three paydays in a month twice each year. PACSES automatically breaks the obligation down into 26 equal payments, dividing each monthly obligation by 2.173 to arrive at the biweekly attachment amount. For example, a $500 per month obligation would result in a biweekly attachment of $230.10 (500/2.173). This, of course, depending on when the order is established relative to one of the two annual three-pay months, will cause a temporary overpayment or underpayment which resolves itself every six months. This situation is caused because PACSES reconciles cases on a monthly basis. 23 Pa.C.S. §4348.(Back to top)
IRS Tax Refund Offset Program (FTROP)
All defendants with qualifying arrears balances are submitted for tax intercept. If the overdue support is $150 or more in a TANF case or $500 or more in a non-TANF case, it will automatically be submitted by PACSES to the federal child support office (OCSE) for further transmission to the IRS. The IRS has additional eligibility rules - the case cannot be spousal support or alimony only, and the debt must be three months old.Updated case balances are submitted electronically by the state, through the federal office, to the IRS monthly all year round.
If the tax filing is a joint return, the state Bureau of Child Support Enforcement (BCSE), holds the intercepted funds for six months to allow ample time for the Injured Party (current spouse of the defendant) to file a Form 8379 with the IRS to recover his or her share of the return. 45 CFR §303.72.
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State Tax Offset Program
The defendant will be submitted for state tax intercept if his overdue support is $11 or more. Unlike the federal (IRS) program, debts for genetic test fees and spouse support only cases are eligible. The defendant receives notice of the pending submission and has 24 days to contest on the basis of a mistake in fact.Plaintiffs who have assigned rights to medical support to DPW may be intercepted and the monies paid to DPW. 23 Pa.C.S. §4307
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Passport Denial
The State Department can deny or refuse renewal of a passport when a defendant’s overdue support is $2,500 or greater. This is allowed by Section 452(k) of the Social Security Act. Once submitted, the State Department will withhold a passport until all arrears are $0 on all of a defendant’s cases, or until the state deletes the case. Cases are reviewed on a weekly basis.(Back to top)
Lottery Intercept
The state Bureau of Child Support Enforcement manually reviews daily lists of lottery winners who have won in excess of $2500. Winners are cross-matched for support cases with an arrears balance of $100 or more. BCSE notifies the county of jurisdiction that the money will be intercepted. Intercepted money is then sent to the DPW by the state Dept of Revenue. 23 Pa.C.S. §4308.(Back to top)
Real Property Liens
Pursuant to PA RCP 1910.22 overdue support arrearages become an automatic lien against a defendant’s real property so that if the property is sold, the DRS can claim the arrearages. The lien searcher must contact the DRS for certification of the arrears. 23 Pa.C.S. §4352(d.1) (3)(Back to top)
Civil Contempt
Civil contempt is a willful failure to comply with an order of court. When a delinquency is detected, a notice of non-compliance will be sent to the defendant and a contempt conference will usually be scheduled. The process will provide the defendant an opportunity to comply in order to have the conference cancelled. If, at the conference, the defendant is found to be in contempt, sanctions will be put into place. There are two levels of contempt: the conference before an officer and the hearing before a judge.Conference Level
Qualifying defendants will be scheduled expeditiously for a Contempt Conference. Service, by rule, is by ordinary mail to the last known address.If unemployment or under-employment is at issue, the defendant may be ordered to report to CareerLink for evaluation, training and job search assistance as appropriate.
The Conference Officer will make every effort to guide the parties to reach an agreement, with terms that are readily attainable and easily monitored. This is known as a Consent Order which cannot be appealed. Absent a consent, the officer will submit a summary and recommendation to the court along with a proposed order based upon the recommendations. The court may accept the recommendations and enter the order as prepared or make any appropriate changes. Parties have the right of appeal.
When a defendant fails to appear, the defendant will be considered to have waived his right to challenge the contempt petition. No warrant for failure to appear will be issued. The officer will follow the procedures above for entering a recommended order. The defendant will have the right to appeal.
Conference Level Contempt Order
The order will set terms for a specific period of time as follows:- Continue regular support and arrears payments, setting regular periodic compliance dates.
- If current arrears payment amount is less than 15% of the obligation, the officer will adjust it to at least 15%.
- The officer may add a reasonable lump sum payment designed, whenever practical, to eliminate the debt within the six-month period, with that lump sum being spread over the due dates for compliance specified in item 1.
- The order will state that failure to comply fully with the order at any compliance date will be cause for scheduling the matter before the court at the next scheduled date for the assigned judge.
Monitoring the Order for Compliance
The lead officers on each enforcement team will monitor the orders for compliance.
If a defendant fails to comply with the order at any of the due dates, the lead officer will schedule the matter before the court at the next hearing date for the appropriate judge.
Contempt Hearing (Court Level)
The court will hear testimony regarding the willful failure of the defendant to comply with the terms of the Conference Contempt Order, and impose appropriate sanctions or relief. Because incarceration is a potential sanction at this point, the defendant has a right to counsel at this phase of the contempt process. Failure of a defendant to report for the hearing before the court will be cause to issue a bench warrant. Costs will be addressed when a defendant is brought to court as a result of service by the Sheriff’s Department. Pa.R.C.P. 1910.25(Back to top)
Bench Warrants
If the party fails to appear for a scheduled contempt hearing before a judge, and the party has been properly served with the date of the hearing, a bench warrant may be issued for the party’s arrest. If the Sheriff’s Department is unable to deliver the defendant to the court in time to complete required business, the party may be held at the prison until such time as s/he can be brought before the court. Pa.R.C.P. 1910.13-1
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Financial Institution Data Match (FIDM)
Quarterly, all financial institutions send account information, by social security number and account number, to a clearing house which matches customers’ accounts with child support defendants owing overdue support. All matches are reported to the DRS, and orders to freeze the accounts are automatically generated. A financial institution is a:
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After review by a judge, the Order to Freeze is mailed to the financial institution. Five days later, a notice of the freeze and a copy of the order is sent to the defendant - giving 30 days to contest the proposed seize of the account. The defendant may contest if there is a mistake in fact, or if (s)he is the trustee for another party in a joint account. If there is no contest to the freeze, and arrears still remain after 30 days, a Seize Order will be mailed to the institution and the funds applied to the case. 23 Pa.C.S. §4304.1(b.1)
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Driver's License Suspension
When the system identifies an arrears balance equal to or exceeding three months of support, and the defendant has no active income attachment, the system will automatically generate and send a Notice of Intent to Suspend, Non-renew, or Deny Driver’s License to the delinquent defendant. The defendant has 30 days to pay in full, make payment arrangements acceptable to the DRS, or contest the action based upon a mistake of fact. If no intervention takes place within the 30-day period, an Order to Suspend is automatically generated. A defendant is prohibited from appealing a suspension either to PennDOT or Civil Court. Statute requires the defendant to satisfy the DRS in order to get the license reinstated. 23 Pa. C.S. §4355(d.1).(Back to top)
Professional License Suspension
This is a non-automatic remedy requiring worker initiation, and is generally used in the most egregious cases or when other remedies are not applicable. The defendant must have overdue support equal to or greater than three months obligation and be non-wage attachable. The defendant is given a 30-day notice before the order to suspend or revoke is initiated. The defendant has a right to contest on the grounds of a mistake in fact.The Pennsylvania Department of State issues all professional licenses except for Attorneys’ licenses which are issued by the Supreme Court of PA. Licenses include, but are not limited to:
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There is no appeal to the Pennsylvania Department of State.
Licenses for attorneys are submitted to the State Supreme Court which processes any appeals. 23 Pa.C.S. §4355(a)
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Recreational License Suspension
Although the legal authority to deny the issuance or renewal of recreational licenses exists within 23 PA C.S. §4355(d.2)(d.3), there is no database at this time to allow interface or exchange of information between issuing authorities and files of delinquent obligors.(Back to top)
Project Save Our Children
The Deadbeat Parents Punishment Act of 1998 makes the willful non-payment of child support a federal crime when the non-paying parent moves to a different state than the children with the intent of avoiding paying child support. To prosecute a non-payer in Federal court it must be proven that:- The defendant has the ability to pay child support
- The defendant willfully failed to pay child support
- The past due support has remained unpaid for longer than one year or exceeds $5000
- The child lives in another state
- All other enforcement remedies have been exhausted
The FBI is responsible for locating the defendant, and the U.S. Attorney’s Office is responsible for the criminal prosecution.
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