Managing Child Support Arrears, A Discussion Framework
Summary of the ACF RO I, II & III Third Meeting on Managing Arrears
- Establishing Appropriate Orders
- Service of Process
- Review and Adjustment of Child Support Orders
- Use of Enforcement Remedies
- Arrears Avoidance vs. Retroactive Support
- Accumulated Arrears Management
- Marriage Reconciliation
- Interest, Penalties and Fees
- Amnesty Programs
- Ancillary Services
The Summary reflects state/non-profit-organization arrears management updates and recorded notes of discussions held at the September 2002 ROI, II & III Third Meeting on Managing Arrears. The views expressed in this summary are those of the participants. This summary is not to be considered as an official policy document of the Department of Health and Human Services or its agencies and it does not necessarily reflect the views of HHS or its interpretation of Federal law. For more information, please contact Jens Feck, ACF ROII, at Jfeck@acf.hhs.gov.
Region I, II and III Child Support Directors, IV-D managers and their private and Federal partners convened the third Child Support Arrears Management meeting on September 22, 2002, in Crystal City, Virginia. The meeting carries on a progressive discussion that was initiated in Philadelphia in April 2001. It's agenda reflects the States' continued determination to share best ideas and proven initiatives, to discuss the pros and cons of specific policies and practices, and to consider new and innovative projects that support the prevention of arrears accumulation.
The meeting opened and closed with remarks by Joanne Krudys, ROII CSE program manager, and Louis Katz, ACF Assistant Regional Administrator. Jens Feck, ROII CSE program specialist, moderated the discussions and summarized the outcome. The participants, representing seven States, the Commonwealth of Puerto Rico and the Virgin Islands, invited the IV-D Directors from California and Colorado and the Urban Institute to present respective overviews of California's Collectability Study and Colorado's Arrears Forgiveness Study. OCSE provided an update on the Low-Income Non-Custodial Parent study being conducted by Policy Studies, Inc. and the Center for Policy Research. The Center for Law and Social Policy offered a thought-provoking overview of arrears management issues.
Participants unanimously agree that the key to successful arrears management is the avoidance of arrears accumulation. The general consensus is that arrears are best avoided if States: (1) limit the number of default orders and establish equitable obligations; (2) limit the amount of built-in arrears at the time of order establishment; and (3) immediately intervene when current payments are not made. It is laudable that a great majority of the policies and procedures outlined in this summary are designed to realize one or more of these three objectives.
ROI, II and III States intend to push forward with existing and new initiatives. Looking ahead, participants anticipate that current policies may need to alter in response to new concerns, economic fluctuations and other external factors, and existing projects may have to be redesigned based on the experience of future successes or failures. It is precisely because of this shifting and evolving nature of the topic that meeting participants see a significant benefit in the continuation of tri-regional arrears management discussions - with an eye on the eventual turnaround in arrearage accumulation. Last but not least, participants hope that the theoretical and practical outcomes of their meetings will continue to support and encourage arrears management initiatives across the nation.
The following section outlines recent arrears management activities in ACF Region I, II and III jurisdictions (consisting of 16 States.) The activity reports summarize planned and on-going policies, procedures and practices that, to varying degree, update the reports cited in the December 2001 summary (see Northeast Hub Follow-Up Meeting on Managing Arrears, starting at page 8.) The reports reflect progress to date, as well as revisions in thinking driven by interim evaluations, these regional discussions and changing conditions. The State activities are grouped, to the extent possible, under the previously established Discussion Framework categories: Order Establishment, Prevention and Early Intervention and Accrued Arrears Management. (States may update the projects and policies cited below via the Arrears Management Best Practices - Good Ideas Implementation Update forms. For more information and copies of the forms, please contact Jens Feck at Jfeck@acf.hhs.gov.)
Delaware - The Title IV-D Agency (IV-D) is abandoning its past policy of attempting to fit all low-income non-custodial parents (NCP/obligor) into one child support guideline box. Pursuant to a new policy, the State will attempt to treat low-income NCPs on an individual basis, using the factors and merits particular to each individual case to fashion a more appropriate support obligation.
Maryland - The State has adopted a new policy with respect to changes in the physical custody (or the household) of a child receiving support. The IV-D Agency now redirects payments or halts the obligation immediately upon receipt of evidence of a change in the child's custody. Prior to the new policy, the flow of money did not change until IV-D had evidence of a legal change in custody. Under the new policy, action to change legal custody now follows the administrative act to redirect the money.
West Virginia - The State also has a moving child policy (see Maryland above.) The new caretaker is asked to sign an affidavit alleging physical custody of the child, notice of which is provided to the current parties in the case. If no party files an objection within a ten-day appeals period, the money is redirected to the new caretaker without the need for further court or administrative action.
Maryland - The State realizes that its Child Support Guidelines need to be reviewed and possibly modified. The guidelines have not been changed since 1988, and, as is true for many other jurisdictions, the somewhat antiquated guidelines may no longer be appropriate in today's environment. IV-D recommends that the guidelines are more equitable when applied to low-income NCPs - this is partially in recognition of its arrears-bucket analysis that shows that 60% of all debt is owed by parents who earn less than $20,000 per year. (Note: California suggests that it is very important to establish clear guidelines and specific policies prior to treating low-income NCPs in a manner substantially different from the general NCP population in order to anticipate and defuse the possibility of constitutional challenges.)
Connecticut - The State, in default cases, heretofore calculated the retroactive support obligation based on the TANF grant amount (a policy that could be subject to legal challenges based on the fact that the retroactive obligation is not being established pursuant to the actual or implied ability to pay.) The obligation, both current and retroactive, will soon be established on the imputed ability to earn minimum wage at forty hours or less. The State also intends to revise the child support guidelines to ensure that they treat low-income NCPs equitably. However, it is unlikely that the revised guidelines will include a NCP self-reserve amount (the State's TANF time-limit is 21 months - if a self-reserve amount is established, it may result in scenarios where the CP receives no basic TANF grant, but the NCP benefits from the self-reserve.)
Connecticut - IV-D is reviewing (and potentially revising and improving) all documents and letters that are used during the initial IV-D/NCP contact phase. IV-D's goal is to draft communications that are customer friendly, lead to personal contact with the NCP, and result in better income and asset information. For example, previously used financial forms were eight pages in length, and not surprisingly, seldom completed or returned by the NCP. New forms try to overcome such response barriers, and all of the new forms contain a built-in fatherhood-friendly message.
Connecticut - The State currently offers a four-month window during which the NCP can challenge a default obligation based on new, accurate and admissible evidence of actual income. This window will now be extended to one year, identical to the State's time period otherwise applicable to general civil defaults.
New Jersey - In a judicial IV-D environment, it is critical that court orders are entered into the IV-D automated system as soon as possible in order to minimize initial arrears accumulations through immediate IV-D enforcement. IV-D is addressing the issue through collaboration with the court system and the joint development of corrective actions. For example, in Hudson County, court clerks have the ability to enter orders directly into the IV-D database. Depending on the County, anywhere from 35-58% of the orders is entered into the database within eight days. The goal is that at least 60% of all orders is entered within eight days.
New Jersey - IV-D concluded a six-month pilot Bench Card project that offers a Judge immediate basic information about Welfare-to-Work (WtW) and similar employment services currently available to non-custodial parents. Via the project, every case in arrears is offered the services of a One-Stop employment office. Initial data indicated that a significant number of cases meeting the broad eligibility criteria had long-standing orders and inaccurate arrears balances (in part, complicating the process of establishing WtW eligibility.) In response, IV-D changed eligibility criteria by limiting cases to those that were less than two years old, or that came before the court pursuant to a bench warrant. This newer and more circumscribed caseload, with correspondingly more accurate arrears balances and other relevant data elements, is now being subjected to an aggressive push into work programs. To supplement the project, IV-D has issued letters to NCPs in arrears to directly provide information about relevant employment services.
New Jersey - IV-D has entered into a Memorandum of Understanding with the Department of Corrections to offer a Nurturing Parent Curriculum to inmates, beginning six months prior to an inmate's release. The project is conducted in partnership with the Departments of Labor, Education, Parole and other relevant entities. Prior to release, the inmates develop a Complete Family Plan that addresses employment, order adjustment, visitation and other family issues. 600 inmates are expected to complete the program in 2002.
Massachusetts - IV-D also considers the expeditious entry of court orders into the IV-D system an absolute priority. The State follows a 48-hour timeframe policy for court-to-IV-D-system referrals. However, court orders drafted by private attorneys often do not contain minimum IV-D data elements, and are seldom filed within timeframe requirements. Collaboration with and training of members of the Bar Association are options under consideration that could lead to improvements in the quality and timeliness of these referrals.
Massachusetts - IV-D has instituted an aggressive caseworker-driven enforcement policy that focuses on the eight-week period immediately after order establishment. If an obligor fails to comply with the order during this period, the case is immediately referred back to the court for further action. This policy establishes up-front the seriousness of the obligation, and, if appropriate, it could facilitate a more timely review of the appropriateness of the obligation. IV-D finds that the immediate focus on new cases is much more cost-effective and productive than a focus on older cases with large arrearages. In further support of this policy, IV-D cites a direct correlation between the time that a case was last subjected to a contempt hearing and that case's payment rate.
Massachusetts - The State's Department of Corrections offers a grant based program to inmates at the time of inmate processing, a so called "happy hour";, that encompasses a IV-D presentation with focus on order modifications. IV-D services include the provision of information about procedures to initiate UIFSA-type modifications that do not require the inmate's presence in court. The State has approximately 22,000 inmates who owe more than $15 million in arrears. Empirical evidence shows that the program reduces the inmates' anxiety with respect to their support obligations.
Puerto Rico - The Commonwealth's Department of Labor has established a Quick Response Task Force that reaches out to about-to-be displaced or laid-off workers, preferably at the site of employment. The task force includes representatives from IV-D and WtW entities. To date, more than 1,800 employees in 48 companies have received comprehensive services that address the impending loss of employment. IV-D offers downward modification services to non-custodial parents, as well as upward modification services to custodial parents. (New Jersey expressed interest in the project, and may consider expanding its existing contact with employers relative to wage withholding and medical support to include WtW and child support issues.)
Puerto Rico - IV-D, in cooperation with the Department of Corrections (which allows IV-D access to its database), provides Responsible Fatherhood and IV-D information to incarcerated NCPs. While some inmates are able to and do pay support, others are offered appropriate information about modification services and other customer rights (so far, more than 390 inmates have received services.) A theatre group has produced and performs vignettes that provide culturally sensitive fatherhood messages. IV-D intends to collaborate with private prison-rights attorneys to ensure continuation of the program. (Inmates who are incarcerated pursuant to contempt actions are separated from the general prison population, significantly easing IV-D's access to these individuals. However, since findings of contempt usually imply a willful failure to pay support, it is not suggested that this group of inmates would necessarily receive modification services.)
Delaware - IV-D points out that arrears often accumulate solely based on how a State conducts its business. For example, the State used to assign cases to caseworkers based on the type of case scenario (interstate, intrastate, etc.) This meant that when a case type switched from intrastate to interstate, a new caseworker would have to be assigned. The transfer period, ranging from one to two weeks, resulted in corresponding or longer delays and inaction with respect to worker-driven enforcement methods. IV-D has now issued a new policy that assigns cases to the caseworker for the life of the case.
Maryland - IV-D is in the process of establishing an electronic interface with the Department of Corrections in order to identify WtW eligible NCPs. Identified candidates would be encouraged to apply and qualify for pre-release employment services.
Connecticut - The State may soon address the circumstances of incarcerated NCPs. IV-D will propose legislation that mandates the automatic suspension of the support obligation if the NCP's sentence is in excess of six months. The automatic suspension would not apply if an interested party can provide evidence that the NCP has sufficient assets with which to pay support. Suspending the obligation by operation of law appears to have two immediate benefits: no one needs to file for or conduct modification hearings, and bypassing the court's discretionary powers may ensure more uniform application.
(There is no consistency with respect to policy on incarcerated NCPs. Connecticut surveyed other IV-D directors on this issue - see Addendum A. Thirty-one States responded. The tabulated response indicates that approximately half of the States are willing to provide some type of modification service for inmates, and half are not.)
Massachusetts - IV-D posts on its website the names and last know location (City and State) of obligors who owe more than $50,000 in unpaid support if they have not made a payment in 6 months. Specific arrears balances are not published. These delinquent obligors are advised that they can have their names removed if they make regular payments equivalent to one month's worth of their current support, plus an additional 25% toward the arrears balance. The list is updated monthly. Massachusetts plans to add names of those owing lesser amounts in the near future. (The Virgin Islands initiated a similar project in 1990, publishing the names of obligors who owed more than $5,000, but only after obligors were given the opportunity to enter into payment plans. The project was abandoned in 1995, when an obligor who did not owe arrears was inadvertently included on the published list.)
Massachusetts - The State relies heavily on the License Revocation process to collect arrears. Through this process, more than $1 million has been collected for more than a thousand IV-D cases. IV-D also reports that the license revocation process significantly contributes to case-clean-up efforts, correcting case data via the appeals process and often identifying open cases that meet closure requirements. (E.g., in response to a plan to suspend approximately 1,750 professional licenses, 1,000 obligors paid, 250 licenses were suspended and 500 cases were closed.)
Massachusetts - The State has been charging interest and penalties since 1998. However, IV-D is primarily using these charges as a leverage to collect arrears. For example, interest charges can be waived if the obligor pays at least 75% of the current obligation and if he is making payments towards arrearages. IV-D reports that many obligors willingly pay off arrears in exchange for a full waiver of all interest and penalties. Surprisingly, or not so, many obligors in TANF cases have taken advantage of the offer, at times making $10,000 to $40,000 lump-sum payments to satisfy arrears. (Some IV-D managers and staff may believe that, generally speaking, TANF obligors do not have the resources or means to satisfy accumulated arrears - as Massachusetts demonstrates, that belief does not necessarily reflect reality in every jurisdiction.)
Massachusetts - IV-D, as part of its overall staff training efforts, encourages front-line staff to use every contact and conversation with a NCP as an opportunity to encourage that parent to enter into a payment plan or to otherwise satisfy arrears balances.
Pennsylvania - IV-D uses its customer service staff to reach out to NCPs. The customer service workers, who normally receive and answer customer calls and complaints, are assigned to an enforcement caseload every Wednesday night. At that time, the workers use their communication skills to call obligors and encourage them to enter into payment plans or otherwise satisfy arrearages. IV-D estimates that for every dollar in labor costs it collects about $12 in arrears - a very impressive cost/effectiveness ratio.
Virgin Islands - IV-D has recently initiated an arrears clean-up project in conjunction with its automated old-system-to-new-system data-conversion project. While very labor intensive, the project has already identified more than $6 million in erroneous arrearages. The project includes notice to each obligor of the newly calculated arrears balance, and information about the right to request a review hearing. The experience so far has been that few obligors decide to challenge the newly calculated but otherwise alleged balance. As enforcement methods such as license revocation are initiated based on the new arrears balances (and some yet to be reviewed accounts), it is expected that additional appeals will result in additional balance adjustments - and possibly some case closures.
Delaware - The State is also in the process of analyzing its arrears bucket. IV-D staff is currently adjusting arrears balances that may have been incorrectly calculated by the system or are incorrect due to conversion errors. Both the projects in the Virgin Islands and in Delaware point to the benefits of including an arrears analysis in the initial phase of any arrears management effort. The analysis will help to define the true extent of the problem, ensure that future enforcement steps are appropriate, and maximize the identification of cases eligible for closure.
West Virginia - The State has a limited Amnesty Program that waives interest in exchange for payment of support. The program has been well received, and it was recently extended by legislative action. Under the program, all interest is waived if the non-custodial parent pays off all arrears and pays all current support for at least one year. Any waiver action requires the custodial parent's prior consent since IV-D does not separately account for interest that is due to the State or the custodial parent (i.e., interest due is co-mingled into one account.)
Delaware - The State is considering a pilot Support Arrears Elimination Program. The pilot would forgive a percentage of arrears in exchange for compliance with the current obligation. For example, arrears would be reduced by 20% if the obligor stays current for four months. Arrears would be reduced by 40% if the obligor stays current for eight months. The pilot project, if implemented, will only apply to a targeted group of non-custodial parents (e.g., low-income and/or previously incarcerated parents), and would only extend to arrears owed to the State. Final terms and parameters are still being negotiated with stakeholders. Legal authority is apparently not an issue since the Attorney General already has the power to compromise state debt.
Maryland - The State's Arrears Leveraging Program is already two years old. The program's success is credited to IV-D's extensive partnering with all relevant Community Based Organizations (CBO), and the program's dual focus on collecting support and putting a dad back into the life of his children. The program targets low-income NCPs who are willing to pay support, and it trades the reduction of bad debt (i.e., arrears unlikely to be collected) in exchange for good behavior. The program initially leads to a debt reduction of 25%, with additional debt reductions possible after a six-month program compliance period. For the first 124 participants, the State collected approximately $340,000 in current support and leveraged approximately one-third of the $1.3 million in arrears available for leveraging. Outreach for the program and IV-D in general has been accomplished through a collaboratively produced six-video public television series. Excerpts of the excellent and powerful video were viewed by meeting participants. Some commented that the video conveyed a clear and important message that the Leveraging Program is not open to dead beats who intend to cheat the system.
(Maryland points to the importance of ensuring that your CBO partners clearly understand that not every person who qualifies for CBO services is necessarily a good or appropriate candidate for arrears leveraging. CBOs must realize that Maryland's eligibility criteria for leveraging are very narrowly construed, and that individuals who fail to pay merely to qualify under the program are certainly not the candidates IV-D is looking for. However, it is doubtful that a lack of eligible candidates will ever be an issue, given that 60% of Maryland's debt is owed by NCPs who earn less than $20,000.)
Maryland - The State is considering implementation of a Debt Expungement Program in the event that the Arrears Leveraging Program is ultimately judged to be successful (see above synopsis of arrears leveraging program.) The Expungement Program's initial focus is on erasing support debt that may have accumulated during a NCP's incarceration - but the program may expand to include other mitigating circumstances. The program, if implemented, will initially apply only to TANF debt but may expand to non-TANF debt. Prior to an expansion to non-TANF debt, the State will probably need to enact legislation that establishes a legal presumption that an incarcerated person has a limited and fixed (in terms of dollars) capacity to pay support.
Connecticut - The State enacted an Arrears Adjustment statute effective as of June 2001. Implementing regulations are currently being drafted. NCPs may be required to meet the following criteria to be eligible for adjustments:
- Prior to enrollment, no payments to arrears during the previous year.
- Satisfactory progress in a fatherhood program, as certified by IV-D.
- Either living with children or paying current support (payment for minimum of 10 out of 12 months.)
NCPs will receive a 5% adjustment for participation in the fatherhood program, an additional 25% adjustment if current support was paid for 10 out of 12 months, and an additional 5% for steady employment during the previous year. Additional adjustments may be made for payment of current support in future years, or for increasing the number of steady-employment hours.
Colorado's caseload represents approximately one percent of the national caseload. In contrast, the State's arrears total represents approximately 2.1 percent of the nation's total arrearage. The discrepancy between these percentages, and the corresponding public policy implications, called for a response. IV-D initiated the response with an analysis of the composition of its arrears bucket (partially financed by an OCSE grant.) Highlights of the analysis are as follows:
- Approximately half of arrears are owed to the government (State and Federal).
- Approximately half of arrears are owed to custodial parents.
- The arrears total is approximately $1.1 billion.
- Incarcerated non-custodial parents only owe approximately $1 million in arrears.
- Interest due represents only 4.6% of total arrears (note that not all counties charge interest.)
- One-third of non-custodial parents had more than one child support order.
- The average monthly earnings of a non-custodial parent in arrears are $1,393.
- The average arrears case is 7 years old and has an arrears balance of $14,000.
IV-D then considered operational factors that might have had a bearing on arrears accumulation and the below-average payment rate to current support. These factors include: (1) that support obligations are retroactive to the birth of the child or the date of the parents' separation, and (2) that the child support guidelines date back to 1991, possibly contributing to the establishment of less than appropriate order amounts in more recent years. (The guidelines were reviewed and modified in 2002, effective January 2003, and they now include a $50 minimum order provision and a self-support reserve that attempts to equalize the effects of poverty.)
The accumulated data and research led to the first point of study: Does the suspension of retroactive child support result in better payment rates for current support? The parameters of the question address the impact of the "retroactive-to-birth"; provision (and the corresponding potential for substantial amounts of retroactive support obligations) in terms of the popular viewpoint that the presence of large arrears has a discouraging affect upon the payment of current support.
To answer the question, IV-D established an experimental group (who were not charged retroactive support) and a control group (who were charged retroactive support pursuant to standard practice) under the umbrella of an Arrears Forgiveness project. No participant in either group was aware of the study, and the experimental group did not know that they received preferential treatment. The outcome of the study is as follows: The presence of or lack of retroactive support had no calculable influence on the payment of current support, as measured at 6 month intervals during the two year project period.
IV-D is not implying that the result of its study would necessarily be the same had it been hosted by "Lets Make a Deal"; - that is, had the NCP knowingly committed to the payment of current support in exchange for the forgiveness of retroactive support. It is also agreed that the above study did not differentiate between cases with large and small arrearages. Arguably, this lack of segregation eliminates the possible influence of the size of the arrears amount as a potential outcome factor upon the payment rate of current support. Meeting participants therefore concur that similar studies conducted under somewhat altered criteria and controls may generate different outcomes and divergent conclusions.
More recently, Colorado initiated a new Arrears Forgiveness project that is based on the give-and-take concept. IV-D targeted NCPs with arrears of $1,500 or higher and approached them via letters (on less-intimidating fatherhood program letterheads) that encouraged active participation in the project. The offered deal was in fact encouraging: if the NCP remained current in the obligation for ten months, $5,000 in arrears would be forgiven. (In Larrimore County, IV-D offered a 10% reduction in arrears for each month of current support.)
Surprisingly, participation rates never exceeded the 7.5% to13% range. The project primarily attracted NCPs with already good payment histories, and few NCPs with poor payment histories. A participant's eventual success rate was also very much dependent upon his earning status - the higher the earnings, the more likely that the NCP successfully completed project requirements. Characteristics common to NCPs who failed were as follows: disabilities, low-income, second families, and problems with visitation. Notwithstanding the less than encouraging participation rates, the project did increase collection rates, and it did reduce arrears.
The conclusions drawn from the aforementioned studies (the lack of effect and the unwillingness to voluntarily participate, especially with respect to non-payors) have understandable led Colorado to focus more on avoiding arrears and less on forgiving arrears. To maximize arrears avoidance, the State is currently considering, or has already implemented, the following:
- Revise the child support guidelines, and establish a NCP self-reserve amount.
- Plan to introduce and enact legislation that will eliminate the interest charges on child support debt. The legislation, to be enacted by or during 2003, is based on the belief that charging interest has no positive effect upon the payment of current support.
- Maximize use of credit bureau reporting as an effective way to get NCPs to pay serious attention to their obligation.
- Collaborate with Judges to obtain consensus on how to best treat incarcerated NCPs.
- Revisit and enhance the Review and Adjustment process.
- Collaborate with Fatherhood Programs to reach common ground on how IV-D can be more responsive to fatherhood issues without compromising its mission to collect fair support on behalf of children.
- Address NCP employment needs.
- Revisit and review the order establishment process, including the establishment of retroactive support and the imputation of income in default settings.
California reported approximately $14.4 billion in accumulated child support arrears when the Collectability Study was initiated. The debt now stands at approximately $17 billion. IV-D is presently conducting more research and collecting additional background data before finalizing legislative and policy proposals that are expected to effectively address this increasingly difficult issue. The additional research and data may also constitute that extra bit of evidence needed to fully convince elected officials that effective policies is not a paraphrase for the appeasement of dead beat dads.
The primary purpose of the Collectability Study is to identify and define that share of California's support debt that is realistically collectable. The Study's preliminary findings indicate that only 25% of the $14.4 billion of debt will be collected over the next 10 years, and that the State's total debt will increase to $34 billion during that same period (on the assumption that the status quo remains unchanged.) These findings further suggest that before the State can hope to have a significant and positive impact on arrears accumulation, it may need to reach beyond the aggressive collection of past-due support and rethink and reinvent entire aspects of the IV-D operation. That process has begun. The State has hired a contractor who is currently developing a wide range of State-specific recommendations that address both the management of existing arrears and their future avoidance. IV-D suggests that the evolving recommendations will likely speak to the following points:
- That the primary focus should be on aggressive enforcement.
- That the secondary focus should be on ending the accrual of additional arrears.
- That the number of default orders must be reduced. (Around 70% of all orders are established by default - usually with high amounts in the erroneous belief that this would encourage NCPs to appear and appeal. In L.A. County, the default rate is over 80%!)
- That the State's policy of allocating payments first to interest and then to principal is a significant contributor to the arrears problem. While the abolishment of interest is probably not politically feasible, considerations may need to include a reduction in the rate or a change in the payment application policy.
- That the State should grant IV-D the authority to forgive arrears with the understanding that such authority serves as a tool to improve IV-D performance. IV-D's preference is that any forgiveness policy be implemented on an individual basis guided by NCP-specific factors; and that the counties have a limited authority to forgive up to a set dollar amount with the State's authority extending to amounts above that limit.
California may find that the final draft of policy recommendations, as State-specific as it must be, is nonetheless likely to reflect and encompass a substantial number of the arrears management experiences coming out of Regions I, II and III and other jurisdictions across this nation. If so, it would be a reaffirmation of the continuing importance of discussing and sharing arrears management ideas at both the local and national level.
The final report that summarizes California's Collectability Study has not yet been released. However, some preliminary findings have been made available, courtesy of the Urban Institute. Highlights of the findings are as follows (1999 and 2000 data):
- CA's caseload represents 12% of the national caseload.
- CA's arrearage represents 20% of the total national arrearage.
- Out of 834,000 NCPs, 22,000 were incarcerated (State prisons only.) 
- 70% of arrears is owed to the State.
- 70% of arrears is owed by NCPs whose income is less than $10,000.
- 25% of NCPs who owe arrears had no recent income (2 years back.)
- The average arrears amount is $17,000.
- For NCPs with an income between $1,000 and $5,000, the average support obligation was $280.
- For NCPs with an income between $25,000 and $30,000, the average support obligation was $360.
- One-third of NCPs who report no income nonetheless paid some support (evidence of the underground economy?)
- 27% of the arrears total represents interest due on principal.
- 70% of debtors have wage withholding in place.
- The median annual earnings of employed debtors are $14,110, compared to other State workers whose median annual earnings are $16,635.
The study's underlying data, and most critically the actual NCP income data, was applied to a microsimulation model to reach the key conclusion that California is not likely to collect more than $3.8 billion over the next ten years towards the $14.4 billion that was owed as of March 2000. The Urban Institute indicates that better results are doubtful even under an aggressive enforcement plan due to the fact that a relatively small number of low-income NCPs (earning less than $10,000 per year) owe more than $10 billion of the total debt. The Urban Institute also suggests that the factors sharing responsibility for the current crisis (among them the high default rate, inadequate modification services, retroactive support and the multiple orders issue) will, if not resolved, continue to advance the ongoing explosion in the overall arrears amount.
It is this kind of sobering arrears analysis that may in fact be the requisite first step any jurisdiction needs to take before reaching consequential conclusions concerning arrears-related causes and solutions. And while not every State's analysis may need to be as complex or expansive, California's ongoing experience certainly reinforces the advisability of the April 2001 Northeast Hub suggestion that knowledge of your arrears bucket is the best foundation for effective arrears management action.
OCSE, Policy Studies, Inc. and the Center for Policy Research are engaged in an on-going study that seeks to identify effective policies and practices with respect to low-income NCPs. The project partially responds to studies by the Office of the Inspector General and other entities that report on the large percentage of total arrears owed by low-income parents who may in fact never have the resources to ever satisfy their debt.
Preliminary outcomes have already reinforced initial beliefs that the most effective way to avoid arrears for low-income NCPs is to secure their participation in the order establishment process and to ensure that the process ends with a reasonable obligation. States may need to supplement this approach by maximizing access to and use of computerized wage data so that at least a minimum amount of earnings information is available for all cases, including defaults. There is widespread consensus that the ultimate beneficiary of any of these efforts should be the family. Designing a system that establishes fair and reasonable obligations that encourage rather than discourage the payment of child support will go a long way toward reaching that goal.
Some of the options and suggestions currently under review are categorized below.
- Base orders solely on the ability to pay and utilize computerized income information in default cases.
- Set temporary orders at default hearings. Do not establish permanent arrearages until the NCP appears at a hearing.
- Set reasonable minimum obligations if the NCP income falls below the self-support reserve amount.
- When imputing income, do not assume that NCP's work full time - especially if the NCP has a history of sporadic unemployment or underemployment.
- Account for multiple family situations and ensure that the total amount of all orders does not exceed a set percentage of available NCP income.
- Consider in-kind contributions such as child-care and medical support when establishing the obligation.
- Establish a self-support reserve that is regularly updated.
- Equalize the respective standards of living in poverty situations.
- Reconsider the imposition of fines and penalties. These charges may merely add to the arrearage and may not be effective to secure future payments.
- Try to minimize the number of default cases by implementing more effective service of process procedures and by reaching out to low-income NCPs whenever possible. It is important to convey the message that attendance and providing income information is an act of self-interest.
- Restrict the use of substitute service, especially for paternity establishments. Monitor the method of service, especially when performed by private process servers.
- Provide complete locate information to process servers.
- Use simple and plain language on all appearance notices - be sure that low-income obligors understand what you are saying.
- Use bilingual notices whenever appropriate.
- Be flexible with hearing times, sites and process.
- Eliminate filing fees if they discourage legal actions such as modifications, motions for visitation, etc.
- Require that a notice to show cause is served in conjunction with any notice of default hearing.
- Offer remedial opportunities after default orders are issued - for example, motions to set aside, amend or reopen default obligations based on evidence of actual assets and earnings.
- Issue temporary or provisional default orders.
- Adopt a staff-wide philosophy that default orders should be avoided, that respondents receive actual notice of proceedings, and that obligations should be fair and reasonable.
- Use multiple means of service of process.
- Reevaluate existing thresholds in the review and adjustment process; consider lowering the threshold if the obligor has large arrears.
- Provide for a simple pro-se modification process for low-income cases.
- Encourage modifications based on changes in circumstances especially when the NCP is unemployed or incarcerated.
- Notify parties or their right to request reviews and adjustments and modifications.
- Automate the pre-review process.
- Expedite the review and adjustment process and avoid hearings if possible.
- Conduct telephonic review and adjustment hearings.
- Pursue alternatives to jail time (use civil rather than criminal contempt.) E.g., consider diversion programs, lump sum payments and purge bonds, and community service.
- Use the following diversion programs if appropriate: employment training, drug treatment, parenting classes and mental health services.
- Temporarily defer sentencing in contempt proceedings to open a payment window.
- Actively pursue the motor vehicle suspension process - suspend the process in lieu of lump sum payment, payment plans or voluntary wage withholding.
- Cap the amount of retroactive support.
- Impose retroactive support based on available current income.
- Expand caseworker discretion in the process.
- Restrict the imposition of retroactive support when appropriate and if permissible.
- Consider capping arrears for low-income NCPs (especially when there is a history of low earnings.)
- Review individual arrears accounts to verify that the accumulation occurred under equitable circumstances.
- Consider arrears forgiveness if the arrears are not the result of willful actions by the NCP.
- Compromise state debt (especially if the debt is considered uncollectable) in exchange for positive NCP action (payment on current, participation in fatherhood or WtW programs, etc.)
- Consider the suspension of child support obligation during sustained periods of reconciliation and cohabitation (requires frequent monitoring.)
- Consider compromising arrears owed by reconciling and cohabiting couples
- Sponsor, co-sponsor and otherwise encourage marriage promotion and divorce prevention demonstrations
- Consider that all charges in excess of child support are especially burdensome for the low-income and NCP and imposition of same may discourage the payment of current support.
- Exempt low-income NCPs from court, genetic testing and similar fees.
- Exempt low-income NCPs from fees associated with the modification process.
- Consider that charging for genetic testing may discourage testing and may result in questionable paternity establishments. In this era of paternity disestablishments, genetic testing should be encouraged, not discouraged.
- Cap fees and other add-ons for low-income NCPs.
- Reduce and/or eliminate interest and penalty payments.
- Establish strict time limits for amnesty programs.
- Precede programs with extensive publicity.
- Offer to revise payment plans as an incentive to increase low-income NPC participation.
- Access and Visitation programs have proven to be a positive factor in raising child support payment rates.
- Encourage (and train) front-line staff to refer problem cases to meditation or otherwise appropriate services.
- If circumstances do not permit regular visitation, encourage supervised visitation as an alternative.
- Extend Access and Visitation services to low-income never-married parents.
- When possible, encourage joint-custody orders; joint-custody appears to encourage the payment of child support.
- Maximize collaboration with all types employment services, whether offered through the TANF program, Department of Labor, CBOs or fatherhood entities.
- Collaborate with Marriage Promotion programs and demonstration projects.
- Collaborate with Divorce Prevention programs and demonstration projects.
CLASP recognizes that the arrears problem encompasses a profound diversity of issues and policy considerations. CLASP, from the viewpoint of a child support advocate, is especially concerned about the impact of accumulating arrears upon the reputation and image of the IV-D program. It recommends that the problem may be best attacked with a balanced approach that needs to embrace a significant focus on the payment of current support. CLASP finally recommends that IV-D decision-makers consider the following points when shaping arrears management policy so that the needs and concerns of all the interested parties may be best addressed:
- Utilize aggressive enforcement techniques that reveal errors in arrears balances and ultimately lead to case clean-up activities. The key is to focus on the prevention of arrears whenever possible.
- Begin with a thorough examination of the order establishment process. Identify and recognize those components of the process that are out of sync with the obligor's underlying ability to pay support.
- Analyze the arrears bucket and use the resulting State-specific data to politically sell proposed policy changes.
- Recognize that some of the arrears accumulate due to inappropriate and counter-productive business practices.
- Understand the difference between forgiving, adjusting and compromising arrears. While States may have their own definitions, consider that arrears arguably could be subject to forgiveness if the arrears did not accumulate as a result of an obligor's willful refusal to pay. Adjustment in turn should not be tied to past behavior but instead to the current ability to pay. And Compromise (or leveraging) should depend upon some corresponding good behavior by the obligor.
- Target the specific groups of NCPs that are most likely to accumulate arrears in your State (for example, incarcerated parents, low-income parents and those that are facing layoffs and other negative economic circumstances.)
- Approach and involve all of your stakeholders, including members of the legislative and judicial branch. Consider individual approaches to stakeholders that include presentations of stakeholder-relevant factual information.
- Consider that the issue surrounding incarcerated NCPs is currently a hot national topic. Interest in this issue can be the hook that gets the State's stakeholders to approach a wider range of arrears management concerns.
CLASP may consider drafting a State matrix of arrears management practices. Such matrix would be a substantial contribution to any State effort to reinvent and/or enhance order establishment, enforcement and prevention policies.
Participants recognize the significant progress they have made since the date of the first arrears management meeting in April 2001. They likewise recognize that the time spent on developing new management strategies and policies may have been at the expense of efforts to change the attitude of front-line IV-D staff to one of greater acceptance and support of a IV-D world that is rapidly changing to accommodate arrears management concerns. It is therefore suggested that the level of future progress may depend on the level of involvement, education and support that is extended to the entire IV-D organizational structure.
Participants are also unanimous in acknowledging the benefits derived from regional discussions around arrears management issues, and they intend to continue the discussion at future meetings. Participants make the following recommendations with respect to future meetings:
- Presentations by outside IV-D Directors and public interest groups have been extremely helpful and stimulating and selected IV-D Directors and other interested parties should be invited to attend future meetings.
- Future discussions, whenever possible, should be conducted within the context of personal responsibility.
Meetings and related activities should be coordinated with the work of the Big10+ group and other relevant workgroups under an umbrella of national collaboration on arrears management issues.
- Future discussions may need to connect to the pending Workforce Investment Act and other legislation that directly impacts low-income non-custodial parents.
- The sharing of summaries and other tri-regional work products should continue via the OCSE net, the IV-D link, the Child Support Report and State and Federal websites.
The time may have come to focus future meetings on some of the individual factors that appear to contribute the most to inappropriate arrears accumulations. Possible topics are:
- The order establishment process
- Multiple order situations
- Service of process
- Review and Adjustment policies
The Agenda Committee will be issuing corresponding proposals and suggestions for Region I, II and III State comment by June 2003.
Addendum A: Survey Regarding Establishment or Modification of Support Orders With Respect to Incarcerated NCPs
(Compiled December 9, 2001; Revised 9-15-02 by Diane M. Fray, IV-D Director, CT)
1. Do you establish (or try to establish) a child support order against an NCP if he is incarcerated?
Alabama: Alabama has no specific law or policy regarding establishing orders against incarcerated noncustodial parents. However, generally we would wait until he is released because he does not have the ability to pay while incarcerated.
Arkansas : No
D.C. The District does not usually attempt to establish a child support order against an incarcerated NCP because DC has case law stating that an NCP has a right to have his/her order suspended during incarceration, unless s/he has income while incarcerated.
Florida: No, unless the state can prove current ability to pay. If a source of income is identified, an obligation can be established.
Guam: Yes, if paternity is not established and if the NCP is on a work release program.
Louisiana: No, unless there is income to calculate the proper support amount. For example, if the NCP is in a work release program. We do pursue establishment of paternity if it is an issue.
Maine: Generally yes and no, there are several factors to consider. Has the action already been filed? If we begin an action and the NCP becomes incarcerated, or if we find out he is incarcerated, we would continue and get the order. Have we searched for years to locate this NCP? Is the incarceration for a short period? Does the NCP have any assets? Is the NCP on work release?
Maryland: Yes but it is a zero order unless there is an income flow.
Massachusetts: Yes, and we are starting to work on procedures for establishing minimum orders through hearing by affidavit or videoconference.
Minnesota: In general, child support magistrates have been entering findings stating that the obligor's income is diminished due to incarceration, reserving child support in the order, and requiring the obligor to provide financial information upon release that will form the basis for an order for support at that time.
Nebraska: Establish paternity, yes. Nebraska law allows for child support to be established, but the majority of Nebraska courts reserve the setting of the child support until incarcerated non-custodial parent is released. If a child support order is established it generally is for the minimal amount which is $50/month.
New Hampshire: Yes. In most cases we request an order in accordance with the statutory minimum child support obligation of $50.00 per month. The obligation would be suspended with accrual while the NCP is incarcerated. Upon release from incarceration, or release to a work release program, we would pursue a modification for current support and payment towards any accrued arrears.
New Mexico: Yes
North Dakota: Yes
Oregon: We do not establish (or try to establish) a child support order against an incarcerated NCP, unless we've ascertained that the NCP has sufficient income or resources to pay on the order or unless the incarceration is expected to last less than six months.
Pennsylvania : Establish paternity but no monetary order unless on work release.
Rhode Island: We generally do not file a motion for support for an incarcerated dad but we will pursue establishment of paternity.
South Carolina: This is not done in most instances. Court action against an incarceratedindividual requires the appointment of a guardian ad litem to safeguard theperson's rights. This is cost prohibitive and cumbersome. In cases involving an incarcerated obligor,staff determines the earliest possible release date and then prompts tocheck for the obligor's release at that time.
South Dakota: Yes
Tennessee: Establish paternity and reserve the order amount while incarcerated.
Utah : Yes (with qualifications)
Virginia: Establish paternity in all cases where there is an incarceration. We set the release date in our computer to tell us 30 days before the release date. Then we seek to establish the order. To establish it on a prisoner with, say, a life sentence or a death sentence merely runs up arrears and punishes the state on incentives.
Washington: Yes, we will establish paternity and child support against an NCP who is incarcerated.
2. If yes to question 1, what criteria are used to establish the amount of the order? (Examples - imputed based on ability prior to incarceration; standard minimum order; other).
Alabama : N/A
Arkansas : N/A
California: No special criteria would be used to establish support amount.
Colorado: We use the child support guidelines, this allows for minimum orders of $20-50; counties and courts may impute wages to the incarcerated if they consider him voluntarily unemployed or underemployed. This consideration is within the discretion of the court.
D.C. If there is income, we use the guideline.
Florida: If the state can prove current ability to pay and a source of income is identified, an obligation can be established.
Guam:Standard minimum orderof $50 per child per month.
Illinois: The criteria we are looking at is a $10 order for support.
Indiana: Prior ability or at least minimum wage.
Kentucky: Based on the child support guidelines, which has a minimum amount.
Maine: Law provides in 19A MRSA ) 2001(5)(D) that "a party who is incarcerated in a correctional or penal institution is deemed available only for employment that is available through such institutions." We could look to other assets as provided by 19A MRSA) 2007 which sets out grounds for deviation - other income such as a trust fund, income producing property, disability benefits.
Maryland: Zero Order
Massachusetts: The court sets the order amount, but the child support agency (DOR) recommends the minimum amount ($50/month), unless the NCP is on work release or has assets. Minnesota: In general, child support magistrates have been entering findings stating that the obligor's income is diminished due to incarceration, reserving child support in the order, and requiring the obligor to provide financial information upon release that will form the basis for an order for support at that time.
Nebraska: Minimal order - $50/month.
New Hampshire:The New Hampshire Child Support Guidelines provide a minimum child support obligation of $50.00 per month. The court may impute wages for the NCP, usually based upon previous employment, if the custodial party, or the State, argues that the NCP's incarceration is due to fault and should not justify the imposition of the minimum obligation.
New Mexico: Incarceration is viewed as a voluntary situation. The support guidelines are utilized using imputed income.
North Dakota: Our case law holds that the guidelines pertain to incarcerated NCPs and that the income should be imputed on minimum wage when the NCP has no other income.
Oklahoma: Minimum Order
Oregon: In the short-term circumstances described above, we would typically impute a minimum-wage income and a minimum order under Oregon's guidelines, unless we had information indicating a higher ability to pay. In other words, we'd just follow Oregon's normal child support guidelines as if the NCP was not incarcerated.
Rhode Island: N/A
South Carolina: N/A
South Dakota: We impute income for the NCP at the minimum wage level.
Tennessee: Generally reserve support amount while incarcerated. If a source of income is identified, would apply child support guidelines as appropriate. TN's guideline approach (percent of net income) allows for a minimal payment.
Texas: Texas law provides that a non-custodial parent owes a duty to support his (or her) child based on the parent's income [Texas Family Code Ch 154]. Many Texas courts view the obligor's incarceration as "intentional employment,"; and therefore set support based on the obligor's income ability prior to this incarceration. If no income history is available, the court usually sets support based on a minimum wage presumption.
Utah : We do not impute in this situation. In the past we have established a standard minimum of $20 per the statutory guidelines, but more recently we have discussed the possibility of holding the support amount in reserve "to be determined" under the guideline table upon release from prison. In the meantime at least paternity is established if paternity was the primary issue.
Washington: Administrative Orders, if the NCP is incarcerated with a release date at least 12 months in the future and has no income or assets, the Division of Child Support will establish an administrative support order for $0.00 per month. Judicial Orders, practices vary by county in Washington, but generally Superior Courts will enter an order for $25 per month per child. Based on the facts of the case, for example, length of incarceration, assets or income available to the inmate, a few courts will enter a zero order and set a review hearing shortly after the inmate's release date. Incarceration is a basis to rebut the presumptive $25 minimum per child per month support amount.
Wisconsin: Based on the child support guidelines, which has a minimum amount.
3. Do you modify an existing child support order if the NCP becomes incarcerated?
Alabama : No.
Arkansas : Incarcerated NCP would have to hire an attorney and petition the court.
California: Not automatically.
Colorado: This is at county CSE or court discretion. Not automatic, NCP must request. Connecticut: Family Support Magistrates do not usually modify orders.
D.C. CSED does not initiate the modification. The NCP has to move for a modification in Court, and the modification is only retroactive to the date of filing the motion. CSED is working with a prisoners' legal services organization to provide information, form pleadings, etc. to incarcerated NCPs to advise them of their rights and facilitate the process.
Florida: No, the Title IV-D agency will not file a petition for modification once a noncustodial parent is incarcerated.
Illinois: Yes we will modify an existing order for an incarcerated NCP.
Indiana: No, per state case law an incarcerated individual should not be rewarded (by having support order lowered) for being incarcerated.
Louisiana: No,the court can order the suspension of collection for the duration of the incarceration; however, arrears accrue in these situations.
Maine: We do not move to modify on behalf of the NCP if we learn he is incarcerated. However, we explain their need to modify their court order. If the NCP has an administrative order we explain the need to modify and how to begin the administrative process. We do not oppose requests for modification generally.
Maryland: Not usually. We have drafted legislation that will be introduced this session to reduce support to $25/month for periods of incarceration over a year if there is no other income.
Massachusetts: There is a separate procedure for incarcerated NCPs to request modification. They file their complaint for modification with DOR. DOR files it with the court and serves the custodial parent. Then it is held until the NCP notifies DOR that he is about to be or has been released. The matter is then marked up for hearing and the court decides on the modification complaint (and can modify back to the date of service on the custodial parent or any date since then-or choose not to modify). We are working on a different procedure for longer term (mostly state prison) inmates, which would have the hearing immediately, with the NCP participating by affidavit or videoconference, if the custodial parent doesn't stipulate to a temporary order for the minimum amount until the NCP is on work release or released. If the NCP doesn't cooperate with DOR or the court after work release or release, the order would revert to the pre-mod amount.
Minnesota: When an obligor becomes incarcerated it may be a significant change of circumstances, which renders the existing order unjust or unfair. If so, the obligor should request a review/modification of the order. Then the order is modified based upon the financial information provided.
Montana: Incarcerated individuals may apply to the CSED or the district court for a modification. However, current Montana Supreme Court case law, and therefore CSED policy, provides that incarceration does not constitute a substantial and continuing change in circumstances sufficient to warrant a modification.
Nebraska: No, Nebraska State Statute §43-512.15 states that a review and modification cannot be done when "the variation from the guidelines is due to a voluntary reduction in net monthly income";. Breaking the law which leads to an individual being incarcerated at one of the state's correctional facilities is based on "voluntarily"; breaking the law, which in turn is a "voluntary"; reduction in their salary.
New Hampshire: In TANF cases we do pursue modifications and, in most cases, do seek imposition of the statutory minimum obligation of $50.00 per month. We have a prisoner outreach program to educate incarcerated obligors as to their statutory rights and responsibilities toward their child support obligation. In Non-TANF cases it would be the responsibility of the obligor to pursue a court modification of their support obligation with proper notice and an opportunity to be heard on the issue provided to the custodial party.
New Mexico: No
North Dakota: Orders are not automatically adjusted merely because the NCP is jailed; however, either party can request a review.
Oklahoma : Yes, if brought to our attention.
Oregon: Yes, if a party to the order so requests.
Pennsylvania : Generally only if requested to do so by the NCP.
Rhode Island: If the obligor files a motion to modify/review we ask the court to look at all the circumstances and to make a decision on a case-by-case basis. In a recent Supreme Court decision on incarcerated dads, the Family Court Judge ruled that he would not suspend a child support order for an incarcerated dad because he in essence through his own fault was incarcerated and should not benefit from that. The dad appealed and the Supreme Court would not hear the case. Accordingly, the issue is still open.
South Carolina: Modification would be within the discretion of the Family Court judge, but in almost all cases, judges do not modify support orders in cases of incarceration. Reduction of the obligation would be seen as rewarding the criminal behavior of the obligor.
South Dakota: No. However, either parent may file a petition for modification without OCSE's involvement. In these cases, however, some courts have ruled the NCPs reduction in income is a result of his/her voluntary acts, and therefore have dismissed the modification action. We have a statute that states the court may deviate from the application of the guidelines in situations involving the voluntary act of either parent, which reduces the parent's income.
Tennessee: Generally, if the NCP requests, we do.
Texas: If any obligor (incarcerated or otherwise) applies for IV-D services and requests a modification of support, the CSD accepts the application and analyzes whether the obligor meets the modification criteria as set out in Texas law: a material and substantial change in circumstances, or it has been three years since the support order was last modified or initially set and the monthly support obligation in place differs by 20 percent or $100 from the amount that would be ordered based on obligor's current income.
Utah: We are not required to pursue a modification in this situation under state law, because the act, which resulted in the NCP in prison was "voluntary". However, recently we have discussed whether we should reconsider past policy and practice, considering the effect it has on the % of current support paid ratio, the % of cases with arrears receiving payments on arrears ratio, and the build up of arrears that may be uncollectible.
Virginia: We do not downwardly modify orders when a person is incarcerated. They are considered voluntarily unemployed.
Washington: no automatic mechanism to modify an existing order when an NCP becomes incarcerated. The NCP may petition to modify an existing order or the agency may petition if we are reviewing a case for modification.
4. If yes to question 3, what are the criteria for the amount of the new order?
California: See response to question number two.
Colorado: $20-50 per month is within guideline, however frequently the NCP is considered voluntarily unemployed and wages are imputed.
D.C. The criteria of the new order is the amount of the NCP's income. If none, the order is suspended.
Illinois: The criteria are a change in income of at least $20 or 100% reduction in income.
Kentucky: They will be modified downward to the minimum amount.
Maine: The new order would be based on the NCPs income from employment available through the correctional facility.
Massachusetts: Same as #2 with provisions
Minnesota: Obligor should request a review/modification of the order. Then the order is modified based upon the financial information provided.
New Hampshire: In most cases the incarcerated NCP has minimal, or no income, which would result in a minimum order for support upon calculation in accordance with the Child Support Guidelines. As noted above the court may impute income and apply the Child Support Guidelines to the imputed income.
New Mexico: N/A
North Dakota: The case law applies to establishment and review and adjustment situations.
Oklahoma: Minimum order
Oregon: We have an administrative rule OAR 461-200-3300 that describes how we proceed when the NCP is incarcerated.
Pennsylvania : Current income and assets if any.
Rhode Island: If the obligor files a motion to modify/review we ask the court to look at all the circumstances and to make a decision on a case-by-case basis, considering the following: the length of incarceration, the resources and assets of the inmate, whether he is on work release, whether he is willing to participate in a job training and placement program, etc.
South Carolina: N/A
South Dakota: N/A
Tennessee: Apply net income to child support guideline chart, which allow for minimal payment.
Texas: Incarceration is not an explicit consideration for the setting of support. If the court decides that the incarcerated obligor has become voluntarily unemployed, it will set support based on the obligor's pre-incarceration income; otherwise, the court will use the minimum wage income presumption. In some instances, the court may articulate reasons for deviating from the child support guidelines and set support at a lesser amount.
Utah: If we were to do this, it would likely result in the standard minimum in the guideline table ($20). We would want to include language in the modified order that would either revert to the original amount upon release from prison, or authorize an automatic adjustment of the support award under the guideline table upon release from prison (if possible).
Virginia: If an order is already established, it will generally be reduced to our state minimum amount, which is $65.
Washington: Modification of the order must be based on a substantial change of circumstances. If the NCP becomes incarcerated after an order was established, the order may be modified based on the NCP's current income. The same standards apply as for order establishment. See answer #2.
Wisconsin: Minimum amount.
5. If your state establishes obligations for past due support, do you assess the NCP for periods of incarceration?
Alabama: Yes, unless the court orders otherwise.
Arkansas: Yes, if the court did not abate support for periods of incarceration.
California: There is no provision in either regulation or statute that would take into account periods of past incarceration in establishing a child support obligation for past due child support. Section 17402 of the Family Code provides for the establishment of retroactive child support. This period is limited to a one year retroactive time period
Connecticut: Not at the present time, unless NCP had assets, or other income.
D.C. Arrears accrue under a pre-existing child support order until a modification takes effect.
Florida: Florida law limits the establishment of retroactive support to a period not to exceed 24 months prior to the date of filing. In situations where the noncustodial parent is incarcerated during this period, the court will make the determination of whether the noncustodial parent had the ability to pay during those periods.
Guam: Yes, for a period of 3 years, and if he/she is a participant in a work release program.
Kentucky: We do not establish obligations for past due support.
Louisiana: No,the court can order the suspension of collection for the duration of the incarceration however, arrears accrue in these situations.
Maine: No, however, if the NCP has income through the correctional facility we could base an obligation on that amount. Rarely happens that NCP has such income.
Massachusetts: Not generally.
Montana: We may, but it is unlikely given our policy as discussed at Question 1 above. Our statutes allow establishment of a support obligation from the date of birth of the child at issue or the parties separation. Liability due to the payment of public assistance may only extend to the two year period preceding commencement of the action. Common commencement dates are the date the application or interstate referral was received for non-public assistance cases and the date public assistance benefits began in public assistance cases. Caseworkers have some discretion in alleging a commencement date based on the facts of the case.
Nebraska: Yes, but it is at the discretion of the court. We can establish orders for retro child support in paternity establishment cases back to the date of the child's birth.
New Hampshire: In public assistance cases we do not pursue past due support. We establish prospective child support orders, generally from the date of the hearing forward. In Non-TANF cases most obligees pursue child support from the date of the filing of the petition. Some have successfully pursued child support beginning at earlier dates, including the child's date of birth.
New Mexico: Yes
North Dakota: We do not pursue support for prior periods. In TANF cases we go back to the date of assignment or birth of the child, whichever is later. In non-TANF cases we go back to the date of application, which may include all or part of the time of incarceration.
Oklahoma: Minimum order.
Oregon: No, unless there is evidence of ability to pay. Our thinking on this is that if we take steps to avoid having the NCP build up a huge arrearage while incarcerated and unable to pay, we diminish the likelihood of him/her being confronted with this huge debt upon release. This huge debt could simply induce the NCP to give up and ignore the debt, or to recidivate, whereas if we prevent this from occurring, then having a manageable child support obligation upon release will foster a greater likelihood of support order compliance.
Pennsylvania: Depends on the circumstances of the case; generally, only if there was an ability to pay based on income and assets.
Rhode Island: At the present time if the order continues to run the obligor owes all past due support even during the period of incarceration. He must file a motion to modify to get relief from the order. We are working on a program with the Corrections Dept. If the inmate, upon release, cooperates with the job training and placement program and pays support continuously we will agree to waive a portion of TANF arrears.
South Carolina: does not establish obligations for past due support. Obligations begin on the date of the initial court hearing or administrative conference.
South Dakota: Yes
Tennessee: A judgment for pass due support, say, from the time a child is born until a support order is established is based upon the NCPs ability to pay during the period.
Texas: Generally, yes. Courts generally follow the same rationale as explained in 2 (above) with respect to setting retroactive support in a paternity action. The CSD petitions the court to award support, based on the obligor's income, for the retroactive period.
Utah: If this question is referring to establishing a past due support amount at the same time a first-time current support order is established, we have done this in the past, but have changed direction on the issue, particularly in paternity cases. We are more concerned with establishing paternity and prospective current support and less concerned with retro arrears.
Virginia: Working prisoner cases is clear a last priority. Having to establish a Guardian Ad Litem and pay more lawyers further penalizes the state and lowers your cost effectiveness.
Washington: Yes, DCS assesses support beginning with the date of the public assistance authorization or receipt of a non-assistance application. If the NCP was incarcerated during some or all of the arrears period DCS computes support based on the income standards as set forth in answer #2.
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1 A recent national study allegedly indicates that out of all incarcerated persons, approximately 10% are in Federal Jail, 33% in local or county jail, and 57% in State prison.