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1994 SESSION

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HB 1328 Support enforcement.

Introduced by: Robert S. Bloxom | all patrons    ...    notes | add to my profiles

SUMMARY:

Support enforcement. Adopts the Uniform Interstate Family Support Act (UIFSA) to replace the Uniform Reciprocal Enforcement of Support Act (URESA), as recommended by the Virginia commissioners to the National Conference of Commissioners on Uniform State Laws and the U.S. Commission on Interstate Support Enforcement.

New jurisdictional provisions (Article 2) establish uniform long-arm jurisdiction over nonresidents in order to facilitate one-state proceedings whenever possible. The Act contains a broad provision for asserting long-arm jurisdiction to give the tribunals in the home state of the supported family the maximum possible opportunity to secure personal jurisdiction over an absent respondent, thereby converting what otherwise would be a two-state proceeding into a one-state lawsuit. Where jurisdiction over a nonresident is obtained, the tribunal may obtain evidence, provide for discovery, and elicit testimony through use of the "information route" sections of the Act.

UIFSA may be used only for proceedings involving the support of a child or spouse of the support obligor, and not to enforce other duties such as support of a parent. Child support and spousal support are no longer treated identically. Under UIFSA, spousal support is modifiable in the interstate context only after such a request is forwarded to the original issuing state from another state.

UIFSA provides that the procedures and law of the forum apply, with some significant additions or exceptions:

1. Certain procedures are prescribed for interstate cases even if they are not consistent with local law, e.g., the contents of interstate petitions (§§ 20-88.54 and 20-88.67); the nondisclosure of certain sensitive information (§ 20-88.54); etc.

2. Visitation issues cannot be raised in child support proceedings (§ 20-88.48).

3. Special rules for the interstate transmission of evidence and discovery are added to help place the maximum amount of information before the deciding tribunal. These procedures are available even in one-state cases in which the tribunal asserts long-arm jurisdiction over a nonresident (§§ 20-88.36, 20-88.59, and 20-88.61).

4. The choice of law for the interpretation of registered orders is that of the state issuing the underlying support order. If there are different statutes of limitation for enforcement, however, the longer one applies (§ 20-88.69).

Under the present URESA, the majority of support proceedings are de novo. Even when an existing order of one state is "registered" in a second state, the registering state often asserts the right to modify the registered order. This means that more than one valid support order can be in effect in more than one state. Under UIFSA, the principle of continuing, exclusive jurisdiction is introduced; this aims, so far as possible, to allow only one support order to be effective at any one time.

A number of improvements are made to streamline interstate proceedings. Proceedings may be initiated by or referred to administrative agencies rather than to courts in those states that use those agencies to establish support orders. Initiation of an interstate case in the initiating state is expressly made ministerial rather than a matter of court adjudication or review. Further, a party in the initiating state may file an action directly in the responding state. Forms which are federally mandated for use in certain interstate cases must be used in all interstate cases for transmission of information from the initiating to the responding state, and the information in those forms is declared to be admissible evidence. Authority is provided for the transmission of information and documents through electronic and other modern means of communication. A tribunal may permit an out-of-state party or witness to be deposed or to testify by telephone conference. Tribunals are required to cooperate in the discovery process for use in a tribunal in another state. A tribunal and a support enforcement agency providing services to a supported family must keep the parties informed about all important developments in a case.

A registered support order is confirmed and immediately enforceable unless the respondent files a written objection within 20 days after service and sustains that objection.

In support actions the Act explicitly authorizes parties to retain private legal counsel (§ 20-88.52), as well as to use the services of a state support-enforcement agency (§ 20.88.50A). It expressly takes no position on whether the support enforcement agency assisting a supported family establishes an attorney-client relationship with the applicant (§ 20-88.50C).

The Act provides two direct enforcement procedures that do not require assistance from a tribunal. First, the support order may be mailed directly to an obligor's employer in another state, which triggers wage withholding by that employer without the necessity of a hearing unless the employee objects. Second, the Act provides for direct administrative enforcement by the support enforcement agency of the obligor's state. All judicial enforcement activity must begin with the registration of the existing support order in the responding state. However, the registered order continues to be the order of the issuing state, and the role of the responding state is limited to enforcing that order except in the very limited circumstances where modification is permitted.

A party (whether obligor or obligee) seeking to modify an existing child support order is directed to follow the identical procedure for registration as when enforcement is sought. Any combination sequence is allowable, e.g., registration for enforcement and later modification, or contemporaneous modification and enforcement.

Except under narrowly defined fact circumstances, under the new Act the only tribunal that can modify a support order is the one having continuing, exclusive jurisdiction over the order. If the parties no longer reside in the issuing state, a tribunal with personal jurisdiction over both parties, or with power given by agreement of the parties, has jurisdiction to modify (§§ 20-88.39, 20-88.40, 20-88.68 and 20-88.74 through 20-88.77).

Unlike URESA, UIFSA clearly authorizes establishment of parentage in an interstate proceeding, even if not coupled with a proceeding to establish support. It may be accomplished without an accompanying establishment of support or in a contemporaneous manner to both determine parentage and establish support. The Act provides no substantive or procedural alterations to the existing law of the forum with regard to determination of parentage.


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