Section Review

Marilyn Ray Smith is an attorney and is deputy commissioner for the Child Support Enforcement Division of the Massachusetts Department of Revenue (DOR). Any views expressed here are her own and not necessarily those of the DOR. She gratefully acknowledges the contributions of Linda Swain Minkoff, staff counsel at DOR, in preparing the matrix showing enforcement remedies used by DOR to collect past-due support. Societal changes over the last 30 years have resulted in increasing numbers of children being raised in single-parent families, with these children facing a life of poverty if their noncustodial parents fail to meet their financial responsibilities. More than 22,000 children are born out of wedlock in Massachusetts every year, while another 14,000 children see their parents separate or divorce. A major strategy in keeping these children out of poverty and off welfare is successful child support enforcement. Because every child support case in the commonwealth has some connection with the Child Support Enforcement Division of the Department of Revenue (DOR), it is important for the family law practitioner to understand the extent of DOR’s involvement — whether minimal or extensive — so that you can properly advise clients of their rights and responsibilities, as well as direct them in how to work effectively with DOR. This article provides a roadmap for how DOR works and includes tips for practitioners to ensure both that DOR has the necessary information to process the case and that you and your clients understand the basis for the actions that DOR takes. Armed with this knowledge, you can help DOR and your clients identify problems and bring them to a speedy resolution. DOR’s caseload There is no income means test for child support enforcement services from DOR; they are available at no cost to children regardless of the income of their parents. With the responsibility to enforce more than 117,000 support orders, DOR relies heavily on automation to collect more than $440 million a year. Total collections for the last 10 years have exceeded $2.9 billion, of which $2.3 billion went to the families of the commonwealth. On average, more than $1.8 million a day moves through our payment-processing center, with 2.5 million checks issued each year to single-parent families. When everything is in order, child support checks issued by DOR are sent to families within 24 hours of receipt of payments from noncustodial parents and employers. Our computer is called COMETS — Commonwealth of Massachusetts Enforcement Tracking System — and like all computers, it must have accurate information in order to function properly. Unfortunately, when information is missing or inaccurate, delays occur — frustrating custodial and noncustodial parents alike. Ensuring accurate and complete information is an area where private counsel can be of great assistance, both to DOR and to your clients. IV-D cases DOR operates pursuant to a complex statutory scheme required by Title IV, Part D of the Social Security Act (42 U.S.C. §§ 651 et seq.), and is therefore referred to in Chapter 119A and elsewhere as the “IV-D agency,” which handles “IV-D cases.” These are the cases where DOR provides a full range of child support services, including: • Establishing paternity; • Establishing child and medical support orders; • Modifying support orders; • Pursuing support in interstate cases under the Uniform Interstate Family Support Act (UIFSA) and other available remedies; • Levying bank accounts; • Placing liens on real estate, insurance settlements and pension accounts; • Revoking or suspending professional and driver’s licenses; • Intercepting federal and state tax refunds; • Referring cases to the U.S. Department of State for denial of passports; • Transferring income withholding and medical support orders when a noncustodial parent changes jobs; and • Bringing actions for contempt of court or criminal non-support. Most of the administrative enforcement remedies used by DOR to collect past-due support — described in more detail below and in the accompanying chart — are not available to cases not being enforced by DOR. Except in cases where there is a very high probability that child support will be paid on time and in full, you should advise clients who are custodial parents to take advantage of DOR’s child support enforcement services, available at no cost. For noncustodial parents, it also can be advantageous for DOR to keep the records of payments in the event there is a dispute about whether payments were made. Non-IV-D cases DOR also has limited responsibility for all “non-IV-D cases” — cases where the parents have not sought DOR’s assistance. Since October 1998, as a convenience to employers and as required by federal law, all child support wage assignments must be paid through DOR, even if the family wants no involvement by DOR. We call these “non-IV-D income withholding only cases.” The only service we provide in these cases is collecting and disbursing the payments from the wage assignments, keeping track of payments as they come in and go out. We do not keep track of arrearages nor do we take steps to find a new employer or initiate any enforcement action if payments stop. In addition, all cases with a child support order established or modified after Oct. 1, 1998, must be included in the state case registry, even if there is no wage assignment and no DOR involvement. We call these “state case registry only cases.” We provide no services on these cases. Information on all cases – IV-D and non-IV-D alike – must be reported weekly to the federal Office of Child Support Enforcement for inclusion in the federal case registry. At present there are about 3,400 non-IV-D income withholding only cases, and about 11,500 state case registry only cases. Source of referrals DOR gets cases from several sources: (1) public assistance referrals from the Department of Transitional Assistance, the Division of Medical Assistance and the Department of Social Services; (2) requests from other states where one party lives in Massachusetts; and (3) applications from non-welfare custodial and noncustodial parents seeking our assistance with their child support case – to establish, enforce or modify an order. Because most of the cases handled by the private bar are in the third category, this discussion will concentrate on these cases. While we receive some applications via the mail or the Internet seeking assistance in establishing an order, most non-welfare cases come to us after an order has been established by private counsel or by pro se litigants. We pick up approximately 500 such cases a month from the probate court. Time is of the essence in ensuring that all the necessary information is accurately and quickly transmitted to DOR, so that the money starts flowing to the family. DOR box at the probate court So that documents can be transmitted to DOR quickly, in every court there is a “DOR box” into which you can place documents related to a specific child support case. Usually, this box is located in the register’s office. DOR collects these documents daily in the main courthouses; they are mailed to DOR daily from the satellite courthouses, such as Fitchburg and Lawrence. The child support documents include the application for child support services, the signed court order, any stipulations relating to child support and the wage assignment. If the separation agreement contains provisions relating to child support that are not covered in the court order, such as post-majority support, make sure those provisions are included. Because provisions are often inter-connected, it is best to include the entire separation agreement. State case registry Make sure your client – whether the custodial or noncustodial parent — fills out the application for child support services, spelling proper names correctly and providing accurate Social Security numbers and dates of birth of all the parties and the children. Every party to a child support case — whether IV-D or non-IV-D — must provide and update as necessary the following information for the state case registry: name; Social Security number; residential and mailing address; telephone number; driver’s license number; and name, address and telephone number of employer. In any subsequent child support proceeding, the court can find proper service if the notice of the proceeding was sent to the most recent residential or employer address filed with the state case registry. In cases enforced by DOR, COMETS maintains information on the amount of support due under the order, including arrearages, interest, penalties and fees, as well as amounts collected by DOR. Terms of court order and stipulation Make sure that the terms of the court order and any stipulation are clear and legible, and that they reflect a sum certain for the amount of child support owed. COMETS cannot effectively handle orders that are based on a percentage of income or that fluctuate during the year, such as seasonal pay or bonuses. In addition, make sure that the duty of support terminates on a date certain, rather than on the occurrence of a contingency, such as the child’s graduation from high school or college. COMETS must have a date indicating when the order will terminate. If DOR is not provided with such a date, we will end the order on the date the youngest child attains age 18, 21 or 23, depending on the terms of the order with respect to post-majority support. Wage assignment order If support is to be paid by wage assignment, deliver the order to DOR via the DOR box, as noted above. Do not mail the wage assignment to the employer. This multipart form is outdated and no longer used by DOR. It has been superceded by the federally required income withholding notice that is issued by all state child support agencies, so that all employers in the country receive the same income withholding notice. Even more importantly, DOR must have a record of the amount and terms of the order to properly and quickly process the payments. Quite simply, if we have no record of the case, we will not know what to do with the payments remitted by the employer. Frequently, it takes a phone call from a frustrated parent or attorney to identify the case. We must have a copy of the court order to release the funds to the proper payee. Administrative transfer of wage assignments Four times a week, COMETS matches child support cases against information Massachusetts employers report to DOR relating to new employees (within 14 days of hire) and current employees (once a quarter). This information also includes employment information about Massachusetts cases reported to the federal government by other states. COMETS automatically generates a wage assignment when a new employer is identified, including cases where a noncustodial parent subject to a Massachusetts order is working in another state. In cases owing past-due support, the amount of the assignment is increased by 25 percent until the arrearage is paid in full. The most effective remedy for collecting current support, wage assignments account for about 80 percent of collections. DOR has issued more than 600,000 wage assignments to employers since 1993. Unemployment and workers’ compensation benefits Every two weeks, COMETS conducts data matches with the Division of Employment and Training (DET) and the Department of Industrial Accidents (DIA) to identify noncustodial parents receiving unemployment or workers’ compensation benefits. If DOR finds a match, DOR will issue a wage assignment. This means that wage assignments can be issued almost as soon as the obligor begins collecting unemployment or workers’ compensation. To avoid confusion and extra work for DET, counsel should not ask the court to issue new wage assignments for cases being enforced by DOR. If the case is in our system and the noncustodial parent starts to receive these benefits, the wage assignment will automatically be issued to DET. DOR also collects past-due support from lump-sum settlements at DIA. Payments before wage assignment goes into effect It usually takes several weeks after issuance of the court order for the employer to begin deducting child support from the noncustodial parent’s paycheck. Until then, in cases being enforced by DOR, advise your clients to make payments to DOR, and not to make or receive direct payments. Direct payments are guaranteed to cause arrears balance problems. If the noncustodial parent pays the custodial parent directly, DOR will have no record of the payments. Once an arrearage of more than $500 occurs, we will commence a variety of enforcement actions, ranging from intercepting tax refunds to suspending drivers’ licenses. While we will give credit to noncustodial parents the first time this happens, it nonetheless takes several weeks for DOR to get evidence from the noncustodial parent that the payments were made, followed by confirmation from the custodial parent that the payments were received. Brochures containing payment stubs and instructions are available at the courthouses throughout the commonwealth. Instructions are also available online at www.mass.gov/dor, and can be summarized as follows: 1. Until the support payments are deducted by the employer, make the payments by check or money order payable to the Commonwealth of Massachusetts. Do not send cash. 2. Print the payor’s name and Social Security number on the check or money order to ensure proper credit. 3. Mail payments to the Department of Revenue (DOR), PO Box 55144, Boston, MA 02205-5144. How to get credit for direct payments DOR receives about 200 requests a month from noncustodial parents seeking credit for payments made directly to the custodial parent. The noncustodial parent must send credible documentation, such as copies, front and back, of cancelled checks or money order receipts, to the Child Support Enforcement Division, Department of Revenue, PO Box 7057, Boston, MA 02204, Attention: Tier II — Direct Pay. DOR then sends copies of those checks or other documentation to the custodial parent to verify that the payments were received. Upon receipt of confirmation or the expiration of 10 days with no response from the custodial parent, DOR gives the noncustodial parent credit for those payments. This is a cumbersome and time-consuming process for all involved. Therefore, as noted above, advise clients not to make direct payments. If a noncustodial parent persists in making direct payments after notice to desist, DOR will decline to give credit for these payments, deeming them gifts to the children. Medical support order Every child support order must include a provision for health-care coverage of the child. If no health insurance is currently available, ask the judge to issue an order requiring that health insurance be provided “if and when available.” The order for health insurance will thus be in place in the event the noncustodial parent obtains health insurance or changes jobs where health insurance is available. Starting in April 2003, DOR will begin issuing the federally mandated National Medical Support Notice, which is an automated and streamlined version of the Qualified Medical Child Support Order (QMCSO). This notice must be deemed by employers to meet all the requirements of a QMCSO under section 609(a) of ERISA, if it is issued by the state’s child support agency. Thus, in cases receiving full child support services from DOR, an order to provide health insurance coverage will be transferred by DOR to the noncustodial parent’s new employer, along with the wage assignment, without the necessity of a court hearing. Changes in custody When custody changes from one parent to another, make sure that the issue of child support is addressed in the new custody order, and that DOR gets a copy of the order. If the order is silent or if we receive no notice of the change, we will assume that the child support order continues to be in effect, and the case will accrue arrearages, with the attendant enforcement actions. Clients often assume DOR will automatically terminate their order if custody changes. We cannot do so, and will stop assessing support only if we receive a copy of a court order to that effect. Modifications As ability to pay changes, parents often obtain modifications of child support orders, either pro se or with counsel, without notifying DOR that the order has changed. Until we receive a new court order, we will continue to assess and enforce child support according to information in our records. Make sure to put copies of any orders modifying child support in the DOR box, even if the clients do not currently receive DOR services. If it is a “non-IV-D income withholding only” case, we must notify the employer of the change in the amount of the order. Countless times, the cause of payment mishaps and account problems is traced to the fact that parties changed the order (or made direct payments) without telling DOR, resulting in time-consuming and frustrating efforts on the part of all to straighten out a problem that could easily have been avoided. When the obligation to pay child support ends The duty to pay child support terminates by operation of law when the youngest child reaches the age of 18, unless the court orders support to age 21 or 23, as permitted by statute. Six months before the youngest child turns 18 in cases receiving full child support services, DOR sends a notice to the custodial parent specifying that the support order will end on the child’s 18th birthday, unless DOR receives a copy of a court order extending it beyond that date. However, if arrears are owed, the wage assignment (including the extra 25 percent) will stay in effect until all arrears are paid in full, and DOR will continue to use other available enforcement remedies. Distribution of payments Federal law dictates how child support payments are distributed. Payments are allocated to current support before arrears, and to arrears owed to the family before arrears owed to the commonwealth, with one exception. Federal tax refund intercepts are alýocated first to any arrears owed to the commonwealth, and then to arrears owed to the family (and never to current support). If support is owed to more than one family and less than the full amount is received, amounts for current support are prorated among the families in proportion to the amount of current support due. Collections on arrears are prorated among the families in proportion to the amount of arrears due, unless the arrearage collection is the result of a contempt action, in which case it is distributed as described below. Payments on contempts In cases involving multiple families, if the noncustodial parent makes a payment as the result of a contempt action on behalf of one of those families, DOR allocates that payment to the family on whose behalf the contempt was brought, provided we receive proper documentation accompanying the payment, so that we can make an exception to the general rule for prorating payments. Counsel should make sure that DOR staff members stationed at the court are notified of these payments, so that they can submit the necessary transmittal form that must accompany the payment to ensure that it is posted correctly. Direct deposit Encourage custodial parents to ask for direct deposit of child support payments. Direct deposit gets payments to families quicker. Application forms are available at the DOR offices at the courthouses. Even better, to expedite the process, parents should be encouraged to apply online at www.mass.gov/dor. (Select “Access Your Case Information and Apply for Direct Deposit.”) Once on this page, parents will need to know their PIN and access code in order to apply. If they do not know these numbers, they can select “Forgot your PIN or Access Code?” and follow the directions. Safety concerns DOR takes steps to enforce support safely in cases that involve domestic violence. If you are concerned that child support enforcement could put your client or your client’s children at risk, please contact us at (800) 332-2733. Our domestic violence specialists can work with the client to review options, and make referrals as appropriate to other service providers. Enforcement remedies Accompanying this article is an enforcement matrix that lists enforcement actions that are initiated only for cases enforced by DOR when the relevant selection criteria are met. Many remain active until past-due support is paid in full, even if payments on current support are made by wage assignment. Most are fully automated — the computer conducts data matches overnight and issues wage assignments, liens, levies and other attachments of income and assets. For example, every other week, DOR conducts data matches with information from banks and other financial institutions, and when a delinquent obligor’s account is identified, a levy is issued. Once a week, the federal government conducts data matches to intercept federal income tax refunds and other federal payments, and also provides DOR with information about noncustodial parents who work or bank in other states. In addition, DOR makes available information about delinquent child support obligors to insurance companies making settlements, the U.S. Department of State in issuing and renewing passports, and credit reporting agencies evaluating credit. Finally, DOR can initiate suspension or revocation of professional and drivers’ licenses of noncustodial parents who refuse to pay child support. Collectively, these enforcement remedies are highly effective, bringing in approximately $100 million in past-due support a year. These enforcement remedies do not violate the due process rights of the delinquent obligor. The obligor had his or her day in court when the original order was set, with notice and opportunity to be heard. He or she has failed to obey the court order to pay support, has received notices from DOR of the enforcement actions that can be taken to collect past-due support, has had an opportunity to request an administrative review, has still failed to pay and yet has acquired income and assets that are by law subject to seizure. Limited exemptions from enforcement Some noncustodial parents may be able to seek exemption from certain enforcement remedies, in limited circumstances. For noncustodial parents who have been paying current support on time and in full plus an additional 25 percent toward arrears for at least six months, DOR will exempt from levy the first $2,500 in a checking account. In addition, if the noncustodial parent receives Supplemental Security Income (SSI) or other government benefits based on disability or is suffering severe financial distress, he or she may be eligible to claim a hardship. All these requests require credible documentation. Unpaid child support a judgment by operation of law Each child support payment becomes a judgment by operation of law as it becomes due and unpaid, and is enforceable like any other judgment in the state, and entitled to full faith and credit. There are few defenses to enforcement — limited to challenging the validity of the underlying court order or mistake of fact, such as wrong person or no past-due support is owed. If your client has a valid basis to object to DOR’s enforcement action, make sure that a request for administrative review is timely filed, and is accompanied by credible documentation. Failure to provide proper documentation will result in denial of the review. A noncustodial parent not satisfied with DOR’s determination may, within 45 days of the issuance of the final determination letter, seek judicial review in the court that issued the order. DOR’s determination letter indicating that administrative remedies have been exhausted must accompany the request for judicial review. Judicial review is limited to correcting any mistakes of fact. G.L. c. 119A, §§ 6(c), 13(a), 17. Interest and penalties DOR charges 12 percent interest and 6 percent penalties on past-due support, computed on June 30 of each year and based on payment performance. To encourage payment of current support, noncustodial parents who have voluntarily paid an amount equal to 75 percent of their total current support due since July 1 of the prior year and who also have reduced the past-due child support debt owed as of June 30 of the prior year will not be assessed interest and penalties for the current year. For cases owing past-due support only, the amount of the payment required to avoid assessment of interest and penalties depends upon the full amount due. DOR sends a notice to noncustodial parents by May 1 of each year with instructions about how to determine what must be paid by June 30 to avoid interest and penalties. Finally, noncustodial parents who pay in full their arrears principal and any interest owed to the custodial parent may be eligible for waiver of any interest owed to the commonwealth, as well as waiver of penalties — an incentive designed to encourage payment of past-due support. Get off the line and online! DOR now has a Web site where you can get specific information about your client’s child support case. This information includes payment status, payment history, checks issued, distribution of payments and recent case activity, including enforcement actions taken. You also can find information about the child support program, such as brochures, forms and worksheets, how to request a modification, legislative updates, an online child support calculator (based on the Child Support Guidelines), and much more. To gain access to your client’s information, you will need a personal identification number (PIN) and access code. Follow these steps to obtain your identification numbers: 1. To get your PIN, mail or fax a power of attorney on your office letterhead that includes the name, address and Social Security number of each client you represent, as well as your Board of Bar Overseers number. The mailing address is Child Support Enforcement Division, Department of Revenue, PO Box 7057, Boston, MA 02204, Attention: POA. The fax number is (617) 887-7540. 2. Once the power of attorney is received, we will send you your own 10-digit PIN and six-digit access code. These two identification numbers will give you access to all of your clients’ cases. The power of attorney is valid for one year. 3. To gain access to the client’s information, go to www.mass.gov/dor, select “Child Support,” then “Access Your Case Information and Apply for Direct Deposit.” 4. Follow the prompts for entering your PIN and access code. Attorneys and parents who have used this Web site have found it useful. Not only does it save time, information can be printed right off the Web site and available for future reference. You can also contact us online by selecting “Contacts,” “General Request,” using the online feedback form, or by sending e-mail to [e-mail csegen]. Cooperation with private bar DOR continues to work to improve its provision of child support services to the children of the commonwealth, looking for ways to strengthen parents’ provision of financial and emotional support for their children. To this end, we are committed to working with the private bar to be more responsive, streamline procedures and make information available quickly. The private bar, in turn, can help us by becoming knowledgeable about DOR’s systems and procedures so that you can give accurate information to clients, and by providing us with all the necessary documentation, such as court orders and changes in addresses, as soon as it is available. DOR attorneys represent the Child Support Enforcement Division, pursuing the commonwealth’s interest in ensuring that children are supported by their parents. We must allocate litigation resources in a balanced and efficient manner so as to benefit the greatest number of children in need of services. DOR’s strength is in its access to information from employers, banks and other government agencies to generate high volume collections at low cost. DOR is not able to devote the resources and individual attention to a case that private counsel may provide, not just for child support but also for other issues important to the family, such as custody and visitation, alimony and distribution of assets. We look forward to working with members of the private bar to maximize our mutual strengths in ensuring that the child support enforcement system serves the needs of the children and families of the commonwealth. Massachusetts Department of Revenue, Child Support Enforcement Division Enforcement of support obligations