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SECTION 5
The purpose of this section is to provide guidance to CSE staff in methods of contacting the Non-Custodial Parent (NCP) and enforcing the support obligation.
Ability to successfully accomplish the goal of regular, periodic payments of child support is contingent upon all staff involved moving the case through each step timely and the availability of legal staff including CSE attorneys and contractors staff.
The Collection Officer may attempt to contact the NCP (whether in person, by phone, by e-mail or in writing) prior to referring the case for legal action. The purpose of a contact is to obtain compliance with an existing obligation. For information regarding establishment cases, see KCSEM 4100.
5110 COMMUNICATION WITH ANY PERSON REPRESENTED BY COUNSEL
The Child Support Enforcement Program must be ever vigilant concerning communication with persons who may be represented by legal counsel. The Kansas Rules of Professional Conduct establish general standards of conduct and practice required of the legal profession in Kansas. As attorneys can be held responsible for the conduct of non-attorneys, it is extremely important that all CSE and contract staff, be aware of the rules which cover communications with represented persons. The specific rules with which CSE staff need to be familiar are found in the Rules Adopted by the Supreme Court of Kansas governing attorney conduct:
RULE 4.2 Communication with Person Represented by Counsel
“In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
RULE 5.3 Responsibilities Regarding Nonlawyer Assistants
“With respect to a nonlawyer employed or retained by or associated with a lawyer: . . .
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
- the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
- the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
Official comments issued by the Kansas Supreme Court regarding the rules governing communications with a represented party appear to give a state agency authority for such communications. Specifically, the comment to Rule 4.2 includes the following statements:
Comment
“This Rule does not prohibit communication with a party, or an employee or agent of a party, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.”
5200 ADMINISTRATIVE ENFORCEMENT
There are various enforcement mechanisms, of which many are administrative in nature, meaning they may be initiated by program staff with little or no involvement by an attorney. These methods may be employed as the sole collection process, or may be used in conjunction with legal action. It is important to indicate to an attorney or contractor when a referred case is simultaneously being pursued by any of these methods.
5210 FEDERAL ADMINISTRATIVE REMEDIES
It is the State’s policy to refer appropriate cases to all Federal administrative remedies for which they qualify. These include:
1. Federal Tax Offset
2. Federal Payment Offset
3. Multi-state Financial Institution Data Match (MSFIDM)
4. Passport Denial
5. IRS Collection Service
Individuals certified for Offsets, MSFIDM or Passport Denial must be sent a written notice at least thirty (30) days in advance of their case being submitted for offset. The advance notice is given in order to allow time for appeals processes. Currently, Pre-Offset Notices to Kansas debtors are sent by the Federal Office of Child Support (OCSE).
Federal tax refunds payable to an NCP may be offset and applied to child support debts. The legal basis for the federal debt setoff program is 45 CFR 303.72.
5210.11 Certification
Criteria for Federal Tax Return Offset certification are as follows:
In TAF or IV-E Foster Care cases:
- The amount of past-due support must be at least $150.00
- The State IV-D agency has verified the accuracy of the arrears, has a copy of the order and any modifications, and has a copy of the payment record or an affidavit signed by the CP attesting to the amount of support owed
- The State IV-D agency has verified the accuracy of the name and SSN of the NCP
In Non-TAF or Medicaid-only cases:
- The amount of past due support must be at least $500.00 in past due child support
- Spousal support may be submitted if the spousal support is contained in the same order as the child support and the parent lives with the child
- The state has verified the accuracy of the arrearage, has a copy of the order and any modifications, and has a copy of the payment record or an affidavit to the amount of support owed, or the court of jurisdiction has established an arrearage judgment
- The state has checked its records to see if there are TAF or FC arrearage. The Non-TAF CP is informed through the CSE Handbook that any amount offset will first be used to satisfy any unreimbursed TAF or FC maintenance payments which have been provided to the family
5210.12 Collections and Distribution
Amounts received through the Tax Offset Program (TOP) must be applied to the certified arrearage and may not be applied to any arrears that were certified after the offset occurs. Certified amounts are updated weekly.
Any TOP collection overage (whether certified as TAF, Non-TAF or both) must be refunded to the NCP, unless the NCP grants the agency permission to apply the money to an uncertified debt.
States are required to provide refunds to NCP’s as soon as it is verified IRS has or will be withholding money which should not be withheld.
See KCSEM 6100 for more information regarding distribution.
CSE has no authority or discretion in dividing a joint return. States are to refer complaints or questions in joint refund cases directly to the IRS Service Center which issued the Notice of Offset.
Unless the obligor files an Injured Spouse Form with the tax return, IRS will capture a joint tax refund to offset a past due support obligation if either spouse is certified as owing support. If an Injured Spouse Form is filed with the return, IRS will process them together. The resulting offset will be minus any injured spouse claim.
Unless IRS has processed an Injured Spouse claim or the NCP and any joint filer have signed a notarized affidavit authorizing the release, Kansas will hold jointly filed refund offsets for six (6) months in order to avoid having to recover the sum from the CP if the current spouse files an injured spouse claim.
5210.122 Injured Spouse Claims
IRS will be advising the spouse of an NCP regarding how to claim his/her share of a joint tax return. If the spouse of the NCP is not liable for the support debt, IRS will issue a pro-rated refund to the spouse.5210.13 Federal Offset Appeal Procedure
See KCSEM 1700 for general information in regard to appeals.
The Collection Officer must explain not only the CSE program actions, but also the purpose and limitations of the appeal hearing. A Hearing Officer has authority to determine if the CSE action to certify an NCP to Federal Offset was correct. In addition, the Hearing Officer has the authority to rule whether the agency has a valid claim against the NCP which is at least equal to the amount of offset.5210.131 Out-of-State Hearings
The NCP may request the appeal hearing in the state submitting the debt, the state that established the order, or the NCP’s home state, regardless whether it is a Kansas case or an Interstate case. If the NCP wants the review handled in the other state, the request for review must be transferred within ten (10) days.The other state must render a decision within forty-five (45) days of receiving the request and both states are bound by that decision.
5210.2 Federal Payments Offset
The Debt Collection Improvement Act of 1996 authorized the administrative offset of a number of federal payments. These include payments such as:
- Vendor payments
- Miscellaneous payments (expense reimbursement and travel payments)
- Federal retirement payments
- Federal salary payments.
It is Kansas’ policy to use the income withholding process to collect from federal employee’s salary payments, including the military.
Federal Payment Offset uses the same certification criteria as Federal Tax Offset. See KCSEM 5210.11
Federal Payment Offset uses the same appeal process criteria as Federal Tax Offset. See KCSEM 5210.13.
5210.3 Financial Institution Data Match (FIDM)
Financial Institution Data Match is one of the many state requirements included in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Section 466(a)(17) requires states to establish procedures under which the IV-D agency enters into agreements with financial institutions in their state to obtain information to assist in the enforcement of child support obligations. PRWORA includes provisions that relieve these institutions from liability for disclosing information to IV-D agencies and allowing states to pay a reasonable fee, not to exceed actual costs incurred, to the institution.
The purpose of the data match is to identify accounts belonging to people who are delinquent in their child support payments. Once a match has been made, a determination may be made to obtain a lien, levy or garnishment.
FIDM has two components, a multi-state portion (MSFIDM) and an in-state portion.
5210.31 Multi-state FIDM (MSFIDM)
For MSFIDM, the federal Office of Child Support Enforcement (OCSE) has instituted a quarterly data match with large financial institutions doing business in multiple states. Those institutions participate in the MS-FIDM project on a voluntary basis. OCSE uses information from all participating states, through the Federal Case Registry, to match against account information for these multi-state institutions and returns matched information to the various states. (See KCSEM 3420.1)
Kansas uses the same certification criteria as Federal Tax Offset for MSFIDM. (See KCSEM 5210.11)
The in-state component of FIDM requires the state to enter into the agreements to do a similar match with financial institutions that only do business in Kansas or that have opted to not take part in the MS-FIDM component.
In order to be certified for Passport Denial, an NCP must have an arrearage balance of at least $2500. The child does not need to be a minor for a debt to be certified for Passport Denial. The KAECSES system will automatically certify an NCP for Passport Denial when a debt reaches the certification criteria.
Once a person has been certified for passport denial, they must make arrangements to pay off the entire arrears balance. They will not automatically be decertified for reducing the arrears balance to less than the threshold amount. Threshold amount is $2500.
With approval of the Federal Regional Office of Child Support Enforcement, an obligation may be submitted to the IRS for collection services. IRS will use the same procedures as for collecting delinquent taxes.
Criteria for approval include:
- A court order for support must be in effect
- The delinquency amount should not be less than $2,000
- The state must demonstrate it has attempted to enforce the support obligation using all available means
- If a UIFSA petition was filed, the petition must have included a request for enforcement of the arrearage
- The delinquent parties should have substantial income and known assets on which a levy can be placed
IRS will charge the state $122.50 per request for service. For the Non-TAF case, this fee must be advanced by the CP.
5220 STATE DEBT SETOFF SERVICES (SDSO)
Through the combined efforts of the Kansas Departments of SRS, Administration and Labor, state payments due an NCP may be offset and applied to child support debts. State payments included are:
- Unemployment Insurance benefits
- Tax refunds
- Vendor payments
- Disability benefits
- Retirement benefits
- Other State payments (lottery winnings, travel reimbursement, etc.)
5220.1 Certifying Cases for SDSO
To be eligible for SDSO, debts must be certified to the Department of Administration by CSE. Certification authorizes the interception of all state payments except wages. (Wages are subject to income withholding.)
For cases to be eligible for this service, all of the following criteria must be met:
- A valid debt exists, and
- The debt must be supported by a court order, a court payment record or a signed voluntary repayment agreement, and
- The debt must be equal to or greater than $25.00.
5220.2 Matching Payments and Pre-offset Notice
Before setoff occurs, the Director of Accounts and Reports, on behalf of the IV-D agency, shall send a notice to the debtor which includes:
- A demand for payment of the debt and a brief explanation of the legal basis of the debt
- A statement of the intent of the agency to set off the debt due against the debtor’s earning, refund or other payment due to the debtor from the State of Kansas or any state agency.
- The right of the debtor to request in writing a hearing to contest the validity of the claim, if such request is made within fifteen (15) days of the mailing of the notice (or in cases where notice was not given by mail, within fifteen (15) days of personal delivery to the debtor); and
- A statement that a hearing may be requested by making a written request to the Director of Accounts and Reports and the address of the Director; and
- The fact that failure to request a hearing within the fifteen (15) day period will be deemed a waiver of the opportunity to contest the claim causing final setoff to default.
5220.21 Unemployment Insurance Benefits (UIB)
The Kansas Department of Labor (DL) will match a certified name against the file of those receiving and/or applying for UIB. When a match occurs, DL forwards the information to DOA. DOA sends a notification advising that unless the NCP voluntarily agrees to having 35% of the benefit withheld, 50% of the benefits will be automatically withheld. The notice also informs the NCP of the appeal procedure available to contest the setoff.
Even if the NCP does not immediately receive benefits, it is important to complete and return the agreement since the case will remain active until decertified. If the NCP later draws benefits, 50% will immediately be offset until an agreement for 35% has been signed.
The NCP has one opportunity to complete this agreement. A second notice will not be issued.5220.22 Monthly Retirement and Disability Benefits
Once a certified case has been identified as a Kansas Public Employees Retirement System (KPERS) match, DOA will mail a special KPERS offset notice to the NCP.
KPERS disability and retirement benefits fit the definition of “earning” in the federal Consumer Credit Protection Act, so no more than the statutory percentage limit of each payment will be offset.
Appeals will be handled in the same manner as other SDSO appeals.
A KPERS-eligible case which includes maintenance (alimony) arrearage may remain certified for as long as the child support debt of the NCP equals or exceeds the amount being offset from KPERS benefits. If an NCP has no child support arrearage, or the child support arrearage is less than the amount that would be offset from KPERS benefits, CRU should be contacted promptly.
A lump-sum withdrawal of contributions, caused by the NCP leaving government employment for another reason is considered a miscellaneous state payment. A withdrawal of contributions is subject to 100% setoff.
5220.23 Other Payments Eligible for State Offset
DOA will match certified cases against a listing of those scheduled to receive a state payment (i.e. travel reimbursement, lottery payoff, etc). On all valid matches, the state payment is held in abeyance and written notice is sent to the NCP notifying him/her of the proposed offset and the available appeal procedures. The NCP has fifteen (15) calendar days to make an appeal request to prevent the setoff.
See KCSEM 1700 for general information in regard to appeals.
Both the Department of Administration and the Department of Labor may hear appeals.5220.31 Office of Administrative Hearings (OAH) Appeals
When an NCP requests an appeal, OAH must notify him/her that an attempt will be made to informally resolve the appeal before an appeal hearing is scheduled. Upon receipt of an appeal request from an NCP, OAH will generate an appeal request confirmation letter to appropriate CSE staff, who should attempt to contact the NCP to resolve such complaints.
If an agreement is reached with the NCP, the NCP will need to request cancellation of the appeal in writing.
If the request for an appeal cannot be informally resolved, the Service Provider will notify OAH to schedule an appeal hearing, as OAH is responsible for conducting and ruling on the hearing.
When OAH is advised of the NCP request for a hearing all offset monies will be held by DOA. After the Hearing Officer has made a final decision, all monies will be forwarded to CSE regardless of the decision:
- If the Hearing Officer allows the offset, the money will be distributed with other DSO money.
- If the Hearing Officer rules in favor of the NCP, the money will still be transferred to CSE to refund to the NCP. The Collection Officer is responsible for notifying CRU to refund the money, or it will be released for distribution.
Copies of all documentary evidence must be sent prior to the hearing by certified mail to OAH and the NCP or the attorney for the NCP.
The Hearing Officer may give the parties ten (10) days after the hearing to resolve the matter by voluntary agreement. If such an agreement is reached, the Hearing Officer must be personally notified of the settlement so the order can reflect the occurrence.
5220.32 Department of Labor (DL) Appeals
An NCP who requests a hearing to determine the authority of DL to withhold unemployment benefits and/or the accuracy of the amounts deducted should be informed that their appeal must be filed with DL at the following address:Appeals Section
Department of Labor
1430 Topeka Blvd
Topeka KS 66612
(785) 296-18005230 INVOLUNTARY ALLOTMENTS OF FEDERAL INCOME
To view A Caseworker's Guide to Child Support Enforcement And Military Personnel, go to:
http://www.acf.hhs.gov/programs/cse/fct/militaryguide2000.htm
Federal law allows for involuntary allotments for military personnel (including Air Force, Army, Coast Guard, Marines, Navy, National Oceanic and Atmospheric Administration and the Public Health Service) who are at least two (2) months delinquent in their court ordered child and/or spousal support.
However, federal regulations require use of income withholding. If there is already an involuntary allotment in place, or special facts prevent use of income withholding, legal staff need to determine if an involuntary allotment is appropriate.
Liens establish a legal interest in property owned by an NCP. When the NCP attempts to dispose of the property or seek a loan, this may present an opportunity to resolve the child support debt.
Kansas Law provides that child support obligations become judgments as they come due and therefore establish an automatic lien against any real property in the county where the order exists. Filing the Notice of Assignment with the court will establish this automatic lien.
If the obligor owns real property in any other Kansas county (where the lien is not automatically filed), the lien shall be filed unless one of the following conditions exist:
- The delinquency is less than $500.00
- The obligated parent has filed a petition in bankruptcy and the bankruptcy proceeding is pending
- The property is encumbered by exemptions, including homestead
- The equity in the realty is insufficient to cover the costs of foreclosing the lien, including the costs of sale and payments to senior creditors with some proceeds left to apply to the arrearage
- There are doubts or questions as to the ownership and/or control of the realty
- Legal staff determine that there is some other legal bar to filing the lien
5240.2 Personal Property Liens
CSE shall file a lien against the registered personal property of an obligor who owes an arrearage unless one of the following conditions exist:
- Other enforcement remedies are available, including mandatory income withholding and the value of the personal property to be attached does not exceed $1,000.00
- Other enforcement remedies are limited, such as for a self-employed parent, and the value of the personal property to be attached does not exceed $500.00
- The personal property is encumbered by a security interest, and the value of the equity interest of the obligor does not exceed the amount given in the prior exceptions
- There are doubts or questions as to the ownership and/or control of the personal property by the obligor
- Sufficient information to file the lien is unavailable
- The property is encumbered by exemptions. The value of the property cannot be determined at little or no expense and the non-exempt equity is insufficient to justify the costs of obtaining the lien
- The non-exempt equity is insufficient to cover the costs of an attachment, including costs of storage, advertising, sale and payments to senior creditors with some proceeds left to apply to the arrearage
The Department Of Corrections' Work Release Program allows a participant to work or seek employment while living at a correctional facility. If any of the dependents of the participant are receiving public assistance, KSA 75-5268 requires a percentage of the participant’s pay be forwarded to KPC or, if there is no order, to SRS. In addition, if the inmate's dependants are not receiving public assistance, a percentage is to be applied to any of the participant’s obligations which have been acknowledged in writing or have been reduced to judgment (e.g., a voluntary agreement or court order on a Non-TAF or Arrears only case).
When CSE staff become aware that an NCP is participating in a work release or employment program, contact should immediately be made to the staff at the correctional facility to discuss the situation. Correctional staff may be able to assistist in establishing a voluntary or court order obligation, an income withholding order or voluntary or involuntary payment.
5260 ADMINISTRATIVE ENFORCEMENT IN INTERSTATE
Federal law requires CSE to have certain administrative procedures in place for interstate enforcement of orders in IV-D cases. This section outlines the procedures with respect to both Kansas cases needing assistance from other states and incoming requests to the Interstate CSE (ICSE) unit.
The terms "administrative enforcement in interstate," "AEI case," and "AEI request" refer to a IV-D case in which the initiating state requests administrative assistance from the responding state but does not send a full interstate transmittal (referral). Examples of requested activities - which will vary according to what is available under the responding state's laws - may include:
- Locating the parent
- Matching against a professional license database and imposing sanctions if matched
- Intercepting state tax refunds, tax rebates or lottery winnings
An Administrative Enforcement in Interstate (AEI) request, when transmitted to another state, will certify that:
- The correct amount of past due support is stated and
- Kansas has complied with all procedural due process requirements applicable to each case.
Cases included in such AEI transmittals are not considered transferred to the responding state's caseload. The Kansas IV-D program continues to be responsible for ensuring that all required IV-D activities are initiated and/or completed as needed.
ICSE will respond within five (5) business days to an AEI request received from another state. If the action requested is not available under Kansas law, or if insufficient information has been provided, ICSE shall inform the initiating state of the problem.
An AEI request is not required to transfer the IV-D case to Kansas. The initiating state will continue to be responsible for all required IV-D activities (other than the AEI activity requested).CSE Central Office, with the assistance of the ICSE Unit, will maintain records of:
- the number of AEI requests received by Kansas
- the number of cases for which Kansas collected support in response to an AEI request and the amount of such collected support
Federal regulations require CSE to have and use procedures to notify consumer credit agencies when an NCP is in arrears. CSE will comply with the notice requirements stated in KSA 23-4,145. As noted in KAR 30-44-4, information will only be furnished to an entity able to prove it is a consumer reporting agency. Kansas requires the NCP to owe at least $1,000 for initial certification. An NCP who meets this criteria will be automatically reported to a credit reporting agency unless:
- a good cause claim is pending or established
- bankruptcy is in process
- a family violence exception is set, or
- an administrative exemption is established in the following situations:
- during pending litigation or appeal in which the amount of arrearage is under challenge
- if the agency has knowledge of a payment which is in process which will reduce the arrears below $1,000
- if unable to verify the amount owed is greater than $1,000 with reasonable certainty (e.g. out-of-state order with old arrearage)
- an occasional situation where a KSA 39-718b judgment with installment payments that have been paid timely exists.
A letter is sent notifying the NCP their case has been referred to a Credit Agency. Those letters which return as undeliverable should be placed in the case file.
After the notice is sent, the NCP will have fifteen (15) days to contest the information.If the NCP pays enough to reduce the arrears below $1,000 prior to referral, a referral will not be made. If the NCP who has received a warning notice brings the account current prior to referral, but subsequently becomes delinquent, no second warning notice will be generated prior to referral. The Collection Officer may negotiate to settle the account of the NCP with a lump sum payment but may not accept installment payments to forestall a referral.
5280 ARREARAGE PAYMENT PLANS AND NCP WORK ACTIVITIES IN TAF CASES
CSE is required by federal law to have procedures for arrearage payment plans and work activities that apply to parents who owe past due support in open TAF cases. The policies below have been adopted to exercise the state options that are available under federal law.
Nothing in this section is intended to prevent the use of payment plans and/or work activities for other types of IV-D cases, nor to limit the authority of either the court or the legal service provider to issue or request any order requiring an obligor to do anything that might be considered a work activity in the general sense, such as seeking employment, improving work skills, or participating in any court-approved program.
Identification of appropriate work activities. In Kansas, the IV-D agency will determine which “work activities,” as that term is used in 42 USC §666(a)(15), are appropriate for parents who owe past due support in open TAF cases. Such “work activities” will be similar to the employment-related activities available to TAF customers.
Appropriate resources for work activities for NCPs are not uniformly available across the State. If an appropriate program is available and CSE resources permit, it is the policy of CSE to enter into a collaborative arrangement at the local, regional, or state level that will provide eligible NCPs access to “work activities” in conjunction with pay plan orders, described below.
Authority to request orders. The IV-D legal services provider is authorized to request a pay plan order, as described below, from the appropriate court when:
- There is an open TAF case
- The obligor owes past due support and
- The Collection Officer has requested such an order
A pay plan order under this section is one which requires the obligor:
- To pay support in accordance with a plan approved by the court or
- To participate in work activities that have been identified as appropriate by the Kansas IV-D agency, if the obligor is subject to a payment plan and is not incapacitated.
The decision to refer cases for legal enforcement action will depend on the availability of legal staff and the procedures outlined in contracts with IV-D Contractors. (For more information on legal referrals, see KCSEM 4000).
The Collection Officer may suggest an approach to enforcement of an order by an attorney, however, the final decision is the responsibility of the attorney. It is crucial that the attorney be informed of any changes in the case status after referral, e.g., changes in status, closure of the TAF case or direct payments.
As much pertinent information as possible should be included in the referral. Information should be accurate and verified.
There are time frames to which all IV-D attorneys (including SRS staff, Court Trustee, Contractor and County and District Attorneys) must conform in order for CSE to comply with Federal regulations.
The IV-D attorney should complete the necessary service of process to initiate enforcement actions within forty-five (45) days of receipt of an appropriate and complete referral in 90% of such cases and within sixty (60) days in 100% of such cases. This would include modifications, contempt actions and proceedings in aid of execution. Preference should be given to income-producing and cost effective remedies with consideration given to special requests made by a Collection Officer.In addition, income withholding has specific timeliness requirements. See KCSEM 5310.
Whenever the rules of civil procedure require that pleadings be personally served upon a Non-Custodial Parent (NCP), one attempt at such service must be made at any address supplied to the attorney. The address might accompany a referral from CSE Program staff, or it might be provided by the sheriff who attempted to serve the pleadings on the NCP. The address does not have to be verified. If the IV-D attorney has reason to believe that the address is not valid, the attorney should consult with the appropriate Collection Officer to determine whether the address is worth trying.
A second attempt must be made on an address within the time frames as previously enumerated in KCSEM 4410 if the attorney has reason to believe that the NCP may still be found there.
These are the minimal attempts needed to comply with the federal requirements. Further efforts for serving pleadings are strongly encouraged.5300.3 Unsuccessful Enforcement
If any attempt to enforce a support order fails, the IV-D attorney must document the reason the attempt failed.
If further enforcement action cannot be taken or if there will be significant delay, the IV-D attorney will notify the Collection Officer of those circumstances and what is necessary to move the case forward.The majority of IV-D cases have had an income withholding order previously entered or at least include a provision for immediate income withholding. For the occasional case that has never had an IWO entered, federal and state law require the issuance of an IWO when a delinquency exists and employment subject to income withholding is known, unless either:
1. The court, upon motion of the NCP, finds that good cause exists not to order immediate income withholding (see 5310.21) or
2. When all parties agree in writing to an alternate arrangement, and past due support is and will remain less than the amount of one (1) month’s support (See 5310.22).In addition, whenever a support order is entered or modified in a IV-D case, an IWO must be entered immediately, unless one of the above noted exceptions applies. If a Kansas child support order exists and an IWO was not issued previously, one should be completed as appropriate under KSA 23-4,107. A standard form developed by the federal Office of Child Support Enforcement, either "Order/Notice to Withhold Income for Child Support" or "Notice of an Order to Withhold Income for Child Support" must be used to notify employers and plan administrators of their duties related to an income withholding order.
No support order (original or modified) should specify the monthly installment for past due support at the risk of limiting the enforcement rights of SRS, particularly in agreed orders. An IWO must state specific amounts for current and arrears withholding.If direct income withholding cannot be implemented, Kansas must promptly request income withholding by another state’s IV-D agency in cases meeting income withholding criteria. An Interstate Transmittal and the appropriate attachments must be sent to the NCP’s state within twenty (20) days of receiving all the information necessary to carry out withholding.
Immediate income withholding applies whether or not a notice of assignment or other notice of the IV-D status has been filed with the court.
Immediate income withholding applies even when no payor (employer) has been identified or when the payor is not subject to the jurisdiction of the Kansas courts. Even if a payor cannot be served, the IV-D attorney is expected to have the IWO entered at the same time the support order is entered. That will allow the IWO to be served promptly when a payor is located or to be sent to another state with an interstate referral.
5310.1 Income Withholding Time Frames
The IV-D attorney is expected to implement income withholding in 100% of new or existing referrals which meet program criteria for use of this remedy. This includes issuing a notice of intent to establish an income withholding order within one (1) working day of receipt of the referral. Thereafter, the IV-D attorney shall comply with all CSE policies concerning prompt filing of affidavits, orders, request for service, etc., and monitoring as necessary to ensure compliance with the IWO.
For incoming interstate IWOs, K.S.A. 23-4,130(a) provides the interstate notice of delinquency (i.e., the notice of intent to request income withholding) will be served on the obligor within ten (10) days after filing the order. However, to meet federal time standards, the IV-D attorney must initiate service of the notice immediately upon filing the order.
If the IV-D attorney declines to process a referral for income withholding, it must be rejected or returned to the appropriate Collection Officer within one (1) working day of receipt along with an explanation as to why the referral was rejected or returned (i.e., inappropriate remedy, incomplete information, etc.).
The Notice of Intent to Request Income Withholding must be prepared (dated and signed) and sent to the NCP/obligor.
The Kansas Income Withholding Act provides a seven (7) day period for the NCP/obligor to file a Motion to Stay the issuance of the IWO; this period is automatically extended to ten (10) days when service is by certified mail according to KSA 60-206 (e).
The Kansas Income Withholding Act does not require any allegation in the Notice of Intent to Request Income Withholding concerning how long the critical payment has been past due. Under no circumstances shall payment of overdue support upon receipt of the advance notice be the sole basis for not implementing the IWO.
Upon expiration of the period allowed for the NCP/obligor to file a Motion to Stay the IWO, federal regulations require the IWO to be sent to the employer of the NCP/obligor:
- Within two (2) days, if the address of the NCP/obligor employer is known on that date, or
- Within two (2) days of the date the address is subsequently verified.
If the NCP/obligor changes employment when income withholding is in effect, the new employer, if known, must be served with a copy of the IWO. If the new employer of the NCP/obligor is unknown, program staff shall utilize all location sources available to locate the new employer.
Under the Kansas Income Withholding Act, the judge may find that good cause exists for not requiring immediate income withholding if there had been proper notice and opportunity for hearing. If proper notice has not been given, the IV-D attorney is expected to take appropriate action for relief from the judgment unless the final outcome is unlikely to be affected by a rehearing.
When a good cause motion is received, the IV-D Attorney is expected to require the NCP sustain the burden of proving good cause exists. No agreed order or stipulation that good cause exists may be approved unless authorized by the local CSE Program Administrator.
5310.22 Alternative Arrangements
The criteria for determining if an alternative arrangement is acceptable is whether there is benefit to be gained from giving up immediate income withholding. Generally, CSE policy does not favor alternative arrangements.
When an NCP contacts CSE about working out an alternative arrangement, first consideration should be given to whether the proposal is acceptable to CSE. This applies even in Non-TAF cases because an alternative arrangement may create an administrative burden on CSE that is unacceptable.
If the proposal seems reasonable, the CP/caretaker relative should be contacted to determine whether the proposal would be acceptable to the CP/caretaker relative. There are only two (2) exceptions:
1. The support order is ONLY for reimbursement to SRS under K.S.A. 39-718a or 39-718b or
2. The SRS reimbursement claim equals or exceeds the assigned arrearage, and the agreement only applies to the assigned arrearage.
In all other cases, the CP/caretaker relative must approve the proposed arrangement.
Regarding incoming interstate cases, the IV-D agency of the initiating state must be offered the opportunity to sign the agreement or to indicate that approval of their agency is not required.5310.3 Motions to Modify an Income Withholding Order
IV-D Attorneys are required to file motions to:
- Modify or terminate the withholding order because of a modification or termination of the underlying support order. The IWO should not be terminated if the support order itself is not terminated
- Modify the amount of income withheld to reflect full payment of the arrearage
Brady v. Brady may require a modification in the current support amount of the IWO.
5310.4 Termination of an Income Withholding Order
Payments of overdue support (arrears) should not be the sole basis for termination of income withholding. However, if there are other reasons for termination as specified in the income withholding statute or as determined by the attorney, steps must be taken to insure this is done promptly. The court which issued the withholding order is to be notified of the change of circumstances which necessitated the termination request by the attorney. The IWO should not be terminated if the support order itself is not terminated, although circumstances may warrant stopping the IWO.
5310.5 Multiple Income Withholding Orders (IWO)
If there is more than one (1) notice for withholding against one (1) NCP, the support must be allocated giving priority to current support up to the limits imposed under the Consumer Credit Protection Act.
If the total to be withheld for current and past due support does not exceed Consumer Credit Protection Act limitations, the payor will withhold in full and disburse to the respective court orders as usual.
If the total to be withheld for current support alone exceeds Consumer Credit Protection Act limitations, payor withholds the maximum percentage allowed, keeps the employer fees (if any), divides the funds evenly among the current support obligations due, up to each order’s current obligation. When all current support for the month has been satisfied, the payor divides any remaining fund evenly among the orders requiring payments of past due support. The payor then sends the money for each court case to the Kansas Payment Center (KPC).
5310.6 Employers Failing to Comply with Income Withholding Orders (IWO)
The following statutes (note any updates in KSA) outline the sanctions against employers who fail to comply with Income Withholding Orders (IWO).
K.S.A. 23-4106(e) defines “Income Withholding Order (IWO)” as an order issued which requires a payor to withhold income to satisfy an order for support and/or to defray an arrearage.
Per K.S.A. 23-4108(d), the payor shall continue to withhold income as required by the IWO until further order of the court.
Per K.S.A 23-4108(i), if any payor violates the provisions of this act, the court may enter a judgment against the payor for the total amount which should have been withheld and paid over. If the payor, without just cause or excuse, fails to pay over income within the time established in subsection (c) and the obligee files a motion to have such income paid over, the court shall enter a judgment against the payor in favor of the obligee for three (3) times the amount of the income owed and reasonable attorney fees. If the payor, without good cause, fails to pay over the income and identify each payment in the same business day, the court shall enter a judgment against the payor and in favor of the obligee for twice the amount of the cost recovery fee.
Per K.S.A 23-4108(j), in addition to any judgment authorized by subsection (i), a payor shall be subject to a civil penalty not exceeding $500 and other equitable relief as the court considers proper if the payor:
1. Discharges, refuses to employ or takes disciplinary action against an obligor subject to an IWO because of such withholding and the obligations or additional obligations which it imposes upon the payor
2. Fails to withhold support from income or to pay such amounts in the manner required by this act
5310.7 Medical Withholding Orders
The Kansas Income Withholding Act (KSA 23-4,105 et seq.) includes procedures for enrollment of a child in a group health plan when the Non Custodial Parent (NCP) has been ordered to provide coverage. Like a cash income withholding order, the medical withholding order continues in effect as an NCP's employment changes and is binding on any new employer that provides group health coverage for dependents.
A standard form developed by the federal Office of Child Support Enforcement, the National Medical Support Notice (NMSN), must be used to notify employers and plan administrators of their duties related to a medical support order. The medical withholding forms generated by KAECSES meet the federal requirements for the NMSN. Also, the NMSN is a standard format prescribed by the Secretary of SRS for use under the Kansas Income Withholding Act, as provided in K.S.A. 23-4,107(e). The terms “medical withholding order,” “National Medical Support Notice,” and “NMSN” all refer to the notice to employers and plan administrators of their medical support duties.
It is CSE policy to use the provisions of the Kansas Income Withholding Act to enforce medical support orders when appropriate, to transfer a medical withholding order to new employers, to seek sanctions when appropriate, and to modify or terminate the medical withholding order. Except as otherwise provided below, the NMSN must be served on a new employer within two (2) business days of new employment being entered by the Kansas Dept. of Labor in the Kansas Directory of New Hires.
The NMSN must be used in all appropriate IV-D cases. As used in this context, "appropriate IV-D case" means a IV-D case in which:
1. A medical support order is in effect which requires the NCP to provide coverage for the child under a group health benefit plan;
2. CSE has enough information to complete the NMSN and serve it correctly;3. If the features of the plan’s dependent coverage are known, the plan includes one or more of the features required by the medical support order;
4. Any specific condition, limitation, or restriction set out in the medical support order is satisfied; and
5. No legal impediment exists which would make service of the NMSN inappropriate.
With respect to item #3 (features of the plan), if the employer has been identified through the Directory of New Hires and the two-day time frame applies, it shall be assumed that the plan includes one or more of the features required by the medical support order.
If there is a medical support order and the NCP is employed but the NMSN is not served on the employer, the reason why the case is not appropriate for service of the NMSN based on the criteria above must be documented in the case record. Documentation of any legal impediment must be entered on the case record by the IV-D attorney or staff designated by the IV-D attorney to do so.
The NMSN allows the plan administrator to report that more than one plan option is available for the child being enrolled. Before enrollment may be completed, a plan option must be chosen. When a plan administrator reports that more than one plan option is available, it is CSE’s policy to consult with the custodial parent (CP), then to promptly notify the plan administrator of the plan option selected by the CP. In an open foster care or Juvenile Justice Authority case, the representative of the custodial agency will be consulted as the “custodial parent.” If the CP, including a custodial agency, does not make a selection or fails to respond, CSE shall select the plan which is most suitable to the overall circumstances of the case, documenting the basis for the selection in the case record.
If CSE is providing medical support services and the NCP’s duty to provide group coverage under a medical support order ends, it is CSE policy to notify the employer promptly of the change in circumstances. However, the employer and plan administrator should be strongly encouraged to provide the NCP an opportunity to continue coverage voluntarily before disenrolling the child. The NCP may wish to take advantage of dependent coverage that is available beyond the age of majority, or the NCP may now have physical custody of the child.
A Medical IWO should be discontinued when the child emancipates. The court does not have statutory authority to order medical support beyond the child's emancipation date. (CSE could enforce medical support to the end of that school year, or into the next year if the court extends the child support order into the child's 19th year.)
The attorney in charge of the enforcement activity is to decide if a garnishment is appropriate. A garnishment may not be possible across state lines. The obligor/employee may not live or work in Kansas, but a garnishment can be served on the company or the registered agent of a company doing business in Kansas.
K.S.A 60-718 addresses Garnishment Proceedings. Per paragraph (c), if the garnishee fails to answer within the time and manner herein specified, the court may grant judgment against the garnishee for the amount of the plaintiff’s judgment or claim against the defendant. But, if the claim of the plaintiff has not been reduced to a judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the defendant.
5320.2 Garnishing Bank Accounts
The service provider should attempt to obtain the bank and bank account number of the NCP. With this information, it is possible to file a non-wage garnishment which is not subject to the same percentage limitations as are wage garnishments. If the NCP is the only person with access to the account, the entire balance may be taken by garnishment.
For more information, see KCSEM 3420 (FIDM) and KCSEM 3420.1 (MSFIDM).
5330 ATTACHMENT OF OTHER ASSETS
Non-exempt property and assets, including real or personal property in which the NCP has an interest may be legally attached.
5330.1 Fraudulent Transfer of Property
KSA 33-102 allows a court to set aside a transfer made for the purpose of defrauding creditors. CSE staff and contractors are required to pursue remedies under this statute, if appropriate.
CSE will obtain a settlement, whenever possible, that is in the best interests of the support creditor (the IV-D agency, the CP or both) instead of filing and pursuing an action under KSA 33-102. The terms and amount of an appropriate settlement will vary from case to case. Settlement of the fraudulent transfer claim may or may not involve forgiving support arrearage.
Before legal action is filed under KSA 33-102, a IV-D case must meet all the following criteria:
1. The transferred property must be located in Kansas, so that it may be attached if the action to set aside the transfer is successful.
2. The suspicious transfer must have occurred within the preceding twenty-four (24) months.
3. All six (6) elements of fraud must be supported by clear and convincing evidence.
If it is not possible to determine the assets of an NCP or his/her ability to pay, Aid in Execution could be filed. The court may compel the NCP to reveal certain information about his/her financial status.
This option will be exercised by the attorney when there has been little or no success using other methods. It is desirable if the process can elicit payment and may result in purge requirement and occasionally a jail sentence.
Suspension of licenses is an enforcement remedy available in a limited number of instances. The purpose of this remedy is to encourage payment of support as opposed to a punitive measure.
A Kansas drivers license can only be suspended upon finding of contempt by a court.
SRS has entered into an agreement with the Kansas Department of Health and Environment (KDHE) to match certain NCP records against the records of the agencies that issue occupational licenses. These agencies include:
Behavioral Science Regulatory Board
Board of Emergency Medical Services
License suspension can only occur as part of a judicial proceeding. There is no automatic suspension of any occupational license. If no response is received, or an agreement cannot be made with the NCP, the case should be referred for appropriate legal action.
5360.3 Lifetime Hunting and Fishing Licenses
Kansas lifetime hunting and fishing licenses are subject to suspension through an administrative process.
Only a prosecuting attorney (county, district or US attorney) may file criminal non-support charges against an NCP. On occasion, an SRS attorney or contractor may request that a prosecutor file such an action. The decision to file rests with the prosecutor.
Federal law [18 U.S.C. õ228] makes willful nonpayment of support of a child who resides in another state a federal offense. The criteria for selecting cases for referral to the U.S. Attorney's office can be viewed at:
5380 POSTING SECURITY, BOND OR GUARANTEES
CSE shall require NCPs to post security, bond or give some other guarantee to secure payment of overdue support for all IV-D cases. CSE shall initiate the action for posting of security, bond or other guarantee unless the case is determined to be inappropriate when one of the following conditions exist:
- Other enforcement remedies are readily available, including mandatory income withholding
- There are doubts or questions regarding the ability of the NCP to post the security if required
- The obligated NCP owns no identifiable real or personal property of sufficient value to provide collateral for a security
- The NCP has filed a petition in bankruptcy and the bankruptcy proceeding is pending
- The address of the NCP cannot be verified so that personal service can be achieved
Child support is non-dischargeable in bankruptcy. When the appropriate office has been informed of a pending bankruptcy, the Collection Officer should prepare a referral to the attorney or contractor to protect the interests of SRS.
Legal staff should be consulted regarding any exceptions or questions.
Lump Sum Settlement Agreement
An NCP may request to be released from responsibility for the total amount of the support arrearage in consideration of making a lump sum payment in an amount less than the total arrearage. If the settlement involves amounts owed to the CP/caretaker relative, the CP/caretaker relative must consent to the settlement of their share. (The prospect of a settlement has usually been exhausted prior to the establishment of a judgment.)Arrearage Settlement Program
The goal of the Arrearage Settlement Program is to assist Non-Custodial Parents to become financially responsible for their children by encouraging regular payments on non-paying cases. Non-Custodial Parents participating in the Arrearage Settlement Program can receive a reduction in permanently assigned arrears by making full current support payments on a regular basis.When there is absolutely no doubt a judgment of an NCP has been paid, either in full or completely by settlement, and the NCP is no longer under an obligation to repay that amount, or any amount in the future, legal staff must file a Satisfaction of Judgment. Extreme caution should be used regarding the filing of Satisfaction of Judgment.
Once an NCP has made either full payment on the support arrearage or has completed the terms of a settlement, the lien which covers the property needs to be lifted. The terms for lien release must be specific.
In the event foreclosure proceedings are instituted on real estate owned by an NCP, SRS will be notified of the legal proceedings if an NOA is on file in the court record. Such a notice is normally served on the Attorney General, forwarded to Central Office and then directed to the appropriate legal staff or contractor.
The attorney will determine:
- If collection efforts are to be made using any equity of the NCP in the real estate or
- If a disclaimer of interest or release of lien is to be prepared
Prior to the change in K.S.A. 60-2403, as amended July 1, 2007, Kansas dormancy rules sustained:
- A support judgment that went dormant if no action taken for five years.
- A judgment that remained dormant until two years after child emancipated (generally age 18) at which time it became void (or extinct).
- Renewal Affidavits could be used to keep judgments from becoming dormant and Revivor actions could be taken to return a dormant (but not yet extinct) judgment to fully enforceable status.
Note: Dormant installments are still valid debts even though they must be revived before they can be enforced by court action. CSE policy is to include dormant installments in the arrearage totals on KAECSES.
Dormancy no longer an issue with 2007 change
Support judgments for “the support of a child” that are entered after July 1, 2007, or prior judgments that had not become void (extinct) before July 1, 2007, will never go dormant (and therefore never become extinct).Judgments that will never go dormant include:
1) child support orders
2) portions of 718b judgments relating to support of a child.
Types of cases with no dormancy issues following 2007 change:
Dormancy (extinction) issues continue
- Orders entered for children who were born on or after July 1, 1987 should not have become void before this statutory change and therefore should continue to remain enforceable.
- Likewise any support order entered on or after July 1, 2000, regardless of the age of the child, should not have become void before this change and should continue to be fully enforceable.
Types of judgments NOT included or affected by the July 1, 2007 amendment include:
1) Alimony / spousal support / separate maintenance which is not for a child.
2) Court costs and fees, including attorney fees.Judgments which had already become void under the old rule ceased to exist and are not affected by this change. They remain void and unenforceable.
Note: The 2007 change does not affect liens which arise as a result of an order. While child support debts may no longer become dormant, they still can cease to operate as a lien if actions are not taken as provided under the old version of the law. Regular use of Renewal Affidavits will ensure that judgments continue to operate as liens on real property.
Types of cases that may continue to have dormancy and extinction issues include:
1) Orders entered for children born prior to July 1, 1987 would likely have dormancy and extinction issues unless appropriate actions were taken throughout the history of the case.
2) Cases with alimony, fee debts, or other non-support debts.
Dormancy and Extinction policy prior to July 1, 2007 amendment of K.S.A. 60-2403
The following were guidelines for Kansas support orders and lump sum judgments for reimbursement (these rules were amended with the enactment of K.S.A. 60-2403):
1. Unless renewed timely (by Renewal Affidavit) a judgment (installment or lump-sum) becomes dormant if court enforcement is not attempted within five (5) years of the date judgment is entered.
2. If a dormant judgment is not revived in a timely manner, it is extinguished and ceases to exist. For most judgments, including alimony, the revivor must be done within two (2) years after dormancy occurs. Once a child reaches age twenty (20), support judgments of that child must always be revived within two (2) years of dormancy. Child support may be revived as late as two (2) years following emancipation of the child (i.e., age 20), if the child support;
- Accrued after July 1, 1981; or
- Accrued before July 1, 1981 and was not extinguished as of July 1, 1998.
Because dormant installments cannot be enforced though judicial remedies until they have been formally revived, it will sometimes be necessary to revive support judgments well before the child’s 20th birthday.
3. Dormancy can be prevented for an additional five (5) years by filing a Renewal Affidavit and by most judicial enforcement procedures. The law changed July 1, 1992, so certain actions that had not previously prevented dormancy will do so after that date.The following examples will prevent dormancy:
- Lump-sum judgment of an arrearage
- Order of attachment, execution or garnishment
- Income withholding proceedings
- Hearing in Aid of Execution
The following activities prevent dormancy but ONLY if the activity occurs after July 1, 1992;
- Interstate income withholding (from Kansas to another state),
- UIFSA (registration or full petition based on the Kansas order),
- Contempt proceedings (sometimes referred to as “Order to Appear and Show Cause”).
The following activities DO NOT prevent dormancy:
- Voluntary payments or allotments
- Credit bureau reporting
- Other administrative remedies, such as vehicle liens or demand letter
When the Collection Officer recognizes an arrearage total includes dormant installments, the Collection Officer is expected to note that fact when requesting legal action by the IV-D Attorney. The Collection Officer is expected to staff the case with the IV-D Attorney for a revivor or enforcement action (to prevent dormancy) if:
1. A child turns eighteen (18), or has turned eighteen (18) within the preceding two (2) years, and/or
2. There is an arrearage owed, and
3. More than five (5) years have passed since the last court enforcement.
5600 MEDICAL SUPPORT ENFORCEMENT
Once medical support has been ordered, CSE is responsible for taking steps to ensure maintenance of the coverage. A review should be set for thirty (30) days or less after the effective date of the order to determine if health insurance has been obtained. If at this or any subsequent time CSE or the Contractor becomes aware the required coverage is available and not in force, steps to enforce the order shall be taken.
See KCSEM 4230 for medical expense judgment information.
It is CSE policy to use the provisions of the Kansas Income Withholding Act to enforce the medical support obligation of a parent whenever appropriate, including the procedures for transferring a medical withholding order to a new employer. See KCSEM 5310.7.
5610 DATA GATHERING AND TRANSMISSION
Federal regulations require CSE to obtain mandatory data in all cases receiving medical support services, whether Non-TAF or public assistance. Federal regulations also require CSE to provide health insurance policy information, though not other mandatory data, to the CP. This sharing is only required when there is a health insurance order and the child becomes enrolled under the NCP’s group plan. If the case falls into both public assistance and Non-TAF categories, policy information must be provided to both the medicaid agency and the CP.
In incoming interstate cases, policy information only need be supplied to the contact person in the initiating state. It is the responsibility of the initiating state to share the information with their medicaid agency and/or CP.
Federal law does not require Kansas to offer any IV-D services related to judgment interest, but the State is allowed to include all or part of such services as part of the CSE program.
By the provisions of K.S.A. 16-204, a support installment which remains due and unpaid bears interest. Judgment interest does not compound, i.e., it is calculated as simple interest. This law applies to all Kansas court orders; most states have similar laws which apply to support orders they issue.
KAR 30-44-5, which went into effect July 1, 2003, set the scope of CSE services regarding judgment interest as follows:
- Services are limited to enforcement of a lump sum previously determined by a tribunal of competent jurisdiction.
- If the judgment interest debt cannot be enforced using the same tools and techniques as a debt for ordinary child support, CSE will not enforce it. This limitation will only apply to some non-Kansas orders.
- If the director of CSE determines a pilot project is in the best interests of the CSE program, the director may authorize additional services related to judgment interest in cases selected for the pilot project.
To comply with federal IV-D distribution rules, judgment interest is collected and distributed only after all current support and arrearages have been satisfied. Once all arrearages have been satisfied, the interest owed on Non-TAF judgments must be met prior to collecting interest owed on TAF judgments.