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ACROSS SESSIONS
- Subject Index: Since 1995
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Developed and maintained by the Division of Legislative Automated Systems.
1998 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 20-60.3, 20-79.1, 20-79.2, 20-79.3, 20-88.32, 20-88.64, 63.1-249 as it is currently effective and as it may become effective, 63.1-250, 63.1-250.3, 63.1-256 as it is currently effective and as it may become effective, 63.1-257 and 63.1-258.1 of the Code of Virginia are amended and reenacted as follows:
§ 20-60.3. Contents of support orders.
All orders directing the payment of child or spousal support, including those orders confirming separation agreements, entered on or after October 1, 1985, whether they are original orders or modifications of existing orders, shall contain the following:
1. Notice that support payments may be withheld as they become due pursuant to
§ 20-79.1 or § 20-79.2, from earnings income as
defined in § 63.1-250, without further amendments of this order or having
to file an application for services with the Department of Social Services;
however, absence of such notice in an order entered prior to July 1, 1988,
shall not bar withholding of support payments pursuant to § 20-79.1;
2. Notice that support payments may be withheld pursuant to Chapter 13 (§ 63.1-249 et seq.) of Title 63.1 without further amendments to the order upon application for services with the Department of Social Services; however, absence of such notice in an order entered prior to July 1, 1988, shall not bar withholding of support payments pursuant to Chapter 13 of Title 63.1;
3. The names and dates of birth of each child to whom a duty of support is then owed by the person responsible for support;
4. If known, the name, date of birth and social security number of each parent of the child and, if different and if known, the name, date of birth and social security number of the person responsible for support and, unless otherwise ordered, each parent or responsible person's residential and, if different, mailing address, residential and employer telephone number, driver's license number, and the name and address of his or her employer; however, when a protective order has been issued or the court otherwise finds reason to believe that a party is at risk of physical or emotional harm from the other party, information other than the name of the party at risk shall not be included in the order;
5. On and after July 1, 1994, notice that a petition may be filed for suspension of any license, certificate, registration or other authorization to engage in a profession, trade, business or occupation issued by the Commonwealth to a person responsible for support as provided in § 63.1-263.1 upon a delinquency for a period of ninety days or more or in an amount of $5,000 or more. The order shall indicate whether either or both parents currently hold such an authorization and, if so, the type of authorization held;
6. The amount of periodic support expressed in fixed sums, together with the payment interval, the date payments are due, and the date the first payment is due;
7. An order for health care coverage, including the health insurance policy information, for dependent children pursuant to §§ 20-108.1 and 20-108.2 if available at reasonable cost as defined in § 63.1-250 and a statement as to whether there is an order for health care coverage for a spouse or former spouse;
8. If support arrearages exist, (i) to whom an arrearage is owed and the amount of the arrearage, (ii) the period of time for which such arrearage is calculated, and (iii) a direction that all payments are to be credited to current support obligations first, with any payment in excess of the current obligation applied to arrearages;
9. If child support payments are ordered to be paid through the Department of Social Services, and unless the court for good cause shown orders otherwise, the parties shall give each other and the Department of Social Services at least thirty days' written notice, in advance, of any change of address and any change of telephone number within thirty days after the change;
10. If child support payments are ordered to be paid through the Department of Social Services, a provision requiring a delinquent obligor to keep the Department of Social Services informed of the name, address and telephone number of his current employer;
11. The separate amounts due to each person under the order, unless the court specifically orders a unitary award of child and spousal support due or the order affirms a separation agreement containing provision for such unitary award;
12. Notice that in determination of a support obligation, the support obligation as it becomes due and unpaid creates a judgment by operation of law; and
13. Notice that on and after July 1, 1994, the Department of Social Services may, pursuant to Chapter 13 of Title 63.1 and in accordance with §§ 20-108.2 and 63.1-252.2, initiate a review of the amount of support ordered by any court.
§ 20-79.1. Enforcement of support orders; income deduction; penalty for wrongful discharge.
A. As part of any order directing a person to pay child support, except for
initial orders entered pursuant to § 20-79.2 or spousal support pursuant
to this chapter or §§ 16.1-278.15 through 16.1-278.18, 20-103,
20-107.2 or § 20-109.1, or by separate order at any time thereafter, a
court of competent jurisdiction may order a person's employer to deduct from
the amounts due or payable to such person, the entitlement to which is based
upon earnings income as defined in § 63.1-250, the
amount of current support due and an amount to be applied to arrearages, if
any. The terms "employer" and "income" shall have the meanings prescribed
in § 63.1-250. The court shall order such payroll
income deductions (i) for "good cause shown" as defined below, or
(ii) if so provided in a stipulation or contract signed by the party
ordered to pay such support and filed with the pleadings or depositions,
or (iii) (ii) upon receipt of a notice of arrearages in a
case in which an order has been entered pursuant to § 20-60.3. Good
cause shall include, or (iii) upon a finding that the
respondent is in arrears for an amount equal to one month's support obligation.
The court may, in its discretion, order such payroll deduction (i) based upon
the obligor's past financial responsibility, history of prior payments pursuant
to any such support order, and any other matter which the court considers
relevant in determining the likelihood of payment in accordance with the
support order, or (ii) at the request of the obligor.
B. Any such payroll income deduction order shall
only be entered upon motion after and concurrent
proper notice sent by the clerk or counsel. The notice shall cite this
section, and,. If the notice is sent by the
clerk, it shall be served in accordance with the provisions of
§ 8.01-296 or § 8.01-329, or sent by certified mail, return
receipt requested, or by electronic means, including facsimile
transmission, to the employer. An employer paying wages subject to
deduction shall deliver the notice to the person ordered to
pay such support.
The notice shall advise the obligor (i) of the amount proposed to be withheld,
(ii) that the order of the court will apply to current and future
employment income, (iii) of the right to contest the order,
(iv) that the obligor must file a written notice of contest of such
payroll deduction with the court within ten days of the date of
issuance of the notice, (v) that if the notice is contested, a hearing will be
held and a decision rendered within ten days from the receipt of the notice of
contest by the court, unless good cause is shown for additional time, which
shall in no event exceed forty-five days from receipt of the notice by the
obligor, (vi) that only disputes as to mistakes of fact as defined in §
63.1-250 will be heard, (vii) that any order for payroll
income deduction entered will state when the deductions will start
and the information that will be provided to the person's employer,
and (viii) that if no notice of contest is filed, an order will be
entered directing payroll deductions, and (ix) that payment of overdue
support upon receipt of the notice shall not be a bar to the implementation of
withholding.
Whenever the obligor and the obligee agree to payroll income
deductions in a contract or stipulation, the obligor shall be deemed to
have waived notice as required in this subsection and the payroll
deduction shall be ordered only upon the stipulation or contract being
approved by the court.
C. The payroll income deduction order of the court shall
by its terms direct the clerk to issue an order in accordance with §
20-79.3 to the obligor's current any employer and, if
required, to each future employer, as necessary to implement the payroll
deduction order. The order shall cite this section as authority for the
entry of the order.
D. The rights and responsibilities of employers with respect to payroll
income deduction orders are set out in § 20-79.3.
E. The clerk's order to the employer pursuant to this section
shall not be effective until when a certified
copy thereof has been served upon the employer or sent to the
employer by electronic means, including facsimile transmission. A
copy shall be mailed provided to the employee by
first-class mail by the clerk on the day that a copy of the order is
transmitted to the sheriff for service the employer. If the
employer is a corporation, such service shall be accomplished as is provided in
§ 8.01-513.
F. Any order issued pursuant to this section shall be promptly terminated or modified, as appropriate, after notice and an opportunity for a hearing for the parties when (i) the whereabouts of the children entitled to support and their custodian become unknown, or (ii) the support obligation to an obligee ceases. Any such order shall be promptly modified, as appropriate, when arrearages have been paid in full.
G. The Department of Social Services may charge an obligee an appropriate fee when complying with an order entered under this section sufficient to cover the Department's cost.
H. If a court of competent jurisdiction in any state or territory of the United
States or the District of Columbia has ordered a person to pay child support, a
court of competent jurisdiction in this Commonwealth, upon motion, notice and
opportunity for a hearing as provided in this section, shall enter a
payroll an income deduction order, conforming with §
20-79.3 as provided in this section. The rights and responsibilities of the
employer with respect to the order are set out in § 20-79.3. Similar
orders of the courts of this Commonwealth may be enforced in a similar manner
in such other state, territory or district.
I. The court or clerk shall attempt to ascertain the obligor's pay period
interval prior to service of the clerk's order. If, after the order is served,
the employer replies to the court that the pay period interval in the
payroll income deduction order differs from the obligor's
pay period interval, the clerk shall convert the single monetary amount in the
payroll income deduction order to an equivalent single
monetary amount for the obligor's pay period interval pursuant to a formula
approved by the Committee on District Courts. The equivalent single monetary
amount shall be contained in a new order issued by the clerk and served on the
employer and which conforms to § 20-79.3.
J. If the Department of Social Services or the Department's designee receives
payments deducted from earnings income of the obligor
pursuant to more than one judicial order or a combination of judicial and
administrative orders, the Department or the Department's designee shall first
allocate such payments among the obligees under such orders with priority given
to payment of the order for current support. Where payments are received
pursuant to two or more orders for current support, the Department or the
Department's designee shall prorate the payments received on the basis of the
amounts due under each such order. Upon satisfaction of any amounts due for
current support the Department or the Department's designee shall prorate the
remainder of the payments received on the basis of amounts due under any orders
for accrued arrearages.
§ 20-79.2. Immediate income deduction; income withholding.
Every initial order entered on or after July 1, 1995, directing a person to pay child support shall include a provision for immediate withholding from the income of the obligor for the amount of the support order, plus an amount for the liquidation of arrearages, if any, unless the obligor and either the obligee or the Department on behalf of the obligee, agree in writing to an alternative payment arrangement or one of the parties demonstrates and the court finds good cause for not imposing immediate withholding. In determining whether good cause is shown, the court shall consider the obligor's past financial responsibility, history of prior payment under any support order, and any other matter that the court considers relevant to the likelihood of payment in accordance with the support order. An alternative payment arrangement may include but is not limited to, a voluntary income assignment pursuant to § 20-79.1 or § 63.1-272.
An order which modifies an initial order may include a provision for immediate income withholding.
The total amount withheld shall not exceed the maximum amount permitted under § 34-29.
A withholding order issued to an obligor's employer pursuant to this section shall conform to § 20-79.3. The rights and obligations of the employer with respect to the order are set out in § 20-79.3. The order shall direct the employer to forward payments to the Department for recording and disbursement to the obligee, or as otherwise required by law. The Department shall not charge a fee for recording and disbursing payments when it is providing support enforcement services to the obligee pursuant to § 63.1-250.2 or § 63.1-251.
§ 20-79.3. Information required in income deduction order.
A. Orders for withholding from the earnings income of an
employee shall state and include the following:
1. The name and correct social security number of the obligor and the name and correct address of the payee;
2. That the employer shall withhold and pay out of the disposable earnings
income as defined in § 63.1-250, a single monetary
amount or the maximum amount permitted under § 34-29, whichever is less,
for each regular pay period of the obligor and payment may be by check.
The terms "employer" and "income" shall have the meanings prescribed in §
63.1-250;
3. That the payroll income deduction shall begin with the
next regular pay period of the obligor following service of the order on the
employer, and payment shall be made at regular intervals consistent with the
pay periods of the obligor;
4. A statement of the maximum percentage under § 34-29 which may be
withheld from the obligor's disposable earnings income;
5. That, to the extent required by the provisions for health care coverage
contained in the order, the employer shall (i) enroll the employee, the
employee's spouse or former spouse and the employee's dependent children listed
in the order as covered persons in a group health insurance plan or other
similar plan providing health care services or coverage offered by the
employer, without regard to enrollment season restrictions, if the subject
spouse, former spouse or children are eligible for such coverage under the
employer's enrollment provisions, and (ii) deduct any required premiums from
the employee's earnings income to pay for the insurance.
If more than one plan is offered by the employer, the spouse, former spouse or
children shall be enrolled prospectively in the insurance plan in which the
employee is enrolled or, if the employee is not enrolled, in the least costly
plan otherwise available. The employer shall also enroll the children of an
employee in the appropriate health coverage plan upon application by the
children's other parent or legal guardian or upon application by the Department
of Medical Assistance Services. In each case which is being enforced by
the Department of Social Services, the employer shall respond to
such orders by advising the Department in which plan the children are enrolled
or if the children are ineligible for any plan through the employer. The order
to the employer shall specify either support withholdings or insurance premium
deductions as having priority for the duration of the order in the event the
maximum total deduction permitted at any time by § 34-29 is insufficient
to fully cover both; the employer shall consider and direct insurance premium
deductions and support withholdings the same for purposes of § 34-29. The
employer shall not be held liable for any medical expenses incurred on behalf
of the spouse, former spouse or dependent children because of the employer's
failure to enroll the spouse, former spouse or dependent children in a health
care plan after being directed to do so by a court or the Department. The
employer shall not be obligated to subsequently make or change such enrollment
if the group health insurance plan or other factors change after the spouse's,
former spouse's or child's eligibility or ineligibility for coverage is
initially determined in response to the order for withholding. However, the
employer shall not disenroll such children unless the employer (i) is provided
satisfactory written evidence that such court or administrative order is no
longer in effect, (ii) is provided satisfactory written evidence that the
children are or will be enrolled in a comparable health coverage plan which
will take effect not later than the effective date of such disenrollment, or
(iii) has eliminated family health coverage for all of its employees. A
one-time fee of no more than five dollars may be charged by the employer to the
employee for the administration of this requirement;
6. That a fee of five dollars for each reply or remittance on account of the
obligor may be charged by the employer and withheld from the obligor's
earnings income in addition to the support amount to be
withheld;
7. That the order is binding upon the employer and obligor and withholding is to continue until further notice by order of the court or the Department is served, or the obligor is no longer employed, whichever occurs first;
8. That the order shall have priority over any other types of liens created by
state law against such earnings income, except that if
there is more than one court or administrative order for withholding for
support against an obligor, the employer must shall honor
the terms of the earliest received order, and subsequent orders shall be
honored in the order of receipt to the extent that the amounts withheld, when
combined, do not exceed the maximum limits imposed under § 34-29 as
specified in the order being honored;
9. That the obligor's rights are protected pursuant to § 63.1-271 and that
no employer shall discharge any employee, take disciplinary action against an
employee, or refuse to employ a person by reason of the fact that his
earnings income have has been made
subject to a deduction pursuant to Chapter 13 (§ 63.1-249 et seq.) of
Title 63.1 or § 20-79.1 or § 20-79.2 and an employer who discharges
or takes disciplinary action against an employee, or refuses to employ any
person because of an order for withholding under these sections shall be liable
for a civil fine of not more than $1,000;
10. The address to which the withholding is to be sent and if payment is
directed to at the Department of Social
Services, and the case number, if available;
11. That the employer shall be liable for payments which he fails to withhold or mail as specified in the order;
12. That, except as provided in subdivision 16, employers shall
remit payments on each regular pay date of the obligor or, if electronic
funds transfer is used, within four days of the pay date, directly to the
payee if requested in writing by the payee, provided the employer has not
received notice that the payee is receiving child support services as defined
in § 63.1-250 through the Division of Child Support Enforcement
for disbursement;
13. That the employer shall be deemed to have complied with the order by
(i) mailing on each regular pay date of the obligor to the
Department or other payee, by first-class mail, any
amount required to be deducted or (ii) by submitting such amounts by
electronic funds transfer transmitted within fours days of the obligor's
regular pay date;
14. That if payment to the Department of Social Services is ordered,
the employer and obligor must shall notify the
Department promptly when the obligor terminates employment and must
shall provide the last known address of the obligor and name and
address of the new employer, if known;
15. That amounts withheld from multiple employees identified as such by (i)
amount, (ii) name, (iii) social security number, (iv) case number if provided
in the order, and (v) date payment was withheld from obligor's
earnings income, may be combined into a single payment
when payable to the same payee;
16. That the employer is to remit individual payments to the Department of
Social Services for disbursement to the payee when directed to do so by the
Department of Social Services or any court having competent jurisdiction.
However, No order or directive shall require employers of 10,000 or more
employees to make payments other than by combined single payment to the
Department's central office in Richmond, without the employer's express written
consent, unless the order is from a support enforcement agency outside the
Commonwealth;
17. Payment pursuant to an order issued under this section shall serve as full acquittance of the employer under any contract of employment;
18. Notice that any employer who fails to timely withhold payments pursuant to this section shall be liable for any amount not timely withheld;
19. That the employer shall provide to the employee a copy of the withholding order and the notice to the employee sent by the court.
B. If the employer receives an order that (i) does not contain the obligor's
correct social security number, (ii) does not specify a single monetary amount
to be withheld per regular pay period interval of the obligor, (iii) does not
state the maximum percentage which may be withheld pursuant to § 34-29,
(iv) contains information which is in conflict with the employer's current
payroll records, or (v) orders payment to an entity other than to the
Department of Social Services, or the Department's
designee, or to the payee, the employer may deposit in the mail or
otherwise file a reply to that effect within five business days from service of
such order. The order shall be void from transmission or filing of such reply
unless the court or the Department, as applicable, finds that the
reply is materially false. In addition, an employer of 10,000 or more persons
may also file a reply, with like effect, if payment is ordered other than by
combined single payment in the case of withholdings from multiple employees to
the Department's central office in Richmond, without the employer's express
written consent, unless the order is from a support enforcement agency outside
the Commonwealth.
§ 20-88.32. Definitions.
In this chapter:
"Child" means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent.
"Child support order" means a support order for a child, including a child who has attained the age of majority under the law of the issuing state.
"Duty of support" means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.
"Employer" means the source of any income as defined in § 63.1-250.
"Home state" means the state in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
"Income" includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this Commonwealth.
"Income-withholding order" means an order or other legal process directed to
an obligor's employer or other debtor, to withhold amounts for child or spousal
support from the obligor's earnings income as defined in
§ 63.1-250.
"Initiating state" means a state from which a proceeding is forwarded or in which a proceeding is filed for forwarding to a responding state under this chapter or law or procedure substantially similar to this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.
"Initiating tribunal" means the authorized tribunal in an initiating state.
"Issuing state" means the state in which a tribunal issues a support order or renders a judgment determining parentage.
"Issuing tribunal" means the tribunal that issues a support order or renders a judgment determining parentage.
"Law" includes decisional and statutory law and rules and regulations having the force of law.
"Obligee" means (i) an individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered, (ii) a state or political subdivision to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee, or (iii) an individual seeking a judgment determining parentage of the individual's child.
"Obligor" means an individual, or the estate of a decedent, who (i) owes or is alleged to owe a duty of support, (ii) is alleged but has not been adjudicated to be a parent of a child, or (iii) is liable under a support order.
"Register" means to file a support order or judgment determining parentage in the juvenile and domestic relations district court or with the Division of Child Support Enforcement of the Department of Social Services.
"Registering tribunal" means a tribunal in which a support order is registered.
"Responding state" means a state in which a proceeding is filed or to which a proceeding is forwarded for filing from an initiating state under this chapter or a law or procedure substantially similar to this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.
"Responding tribunal" means the authorized tribunal in a responding state.
"Spousal-support order" means a support order for a spouse or former spouse of the obligor.
"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term "state" includes a Native American tribe and includes a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedures under this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act.
"Support enforcement agency" means a public official or agency authorized to seek enforcement of support orders or laws relating to the duty of support, establishment or modification of child support, determination of parentage, or locating obligors or their assets. A support enforcement agency of this Commonwealth is not authorized to establish or enforce a support order for spousal support only.
"Support order" means a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney's fees, and other relief.
"Tribunal" means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage; however, the support enforcement agency of this Commonwealth has no authority to establish or enforce a support order for spousal support only.
§ 20-88.64. Employer's receipt of income-withholding order of another state.
An income-withholding order issued in another state may be sent to the person or entity defined as the obligor's employer as defined in § 63.1-250 under the income-withholding law of this Commonwealth without first filing a petition or comparable pleading or registering the order with a tribunal of this Commonwealth.
§ 63.1-249. Purpose of chapter; powers and duties of the Department and the Committee on District Courts.
It is the purpose of this chapter to promote the efficient and accurate
collection, accounting and receipt of support for financially dependent
children and their custodians, and to further the effective and timely
enforcement of such support. The centralization of these functions being
largely accomplished by Chapter 488 of the Acts of Assembly, 1985, and thereby
resulting in consequences inconsistent with such purposes, it is the further
purpose of this chapter to correct the inefficiencies of such centralization by
reestablishing a localized system of collection and disbursement of such
support, with appropriate local accounting, while maintaining centralized
accounting, enforcement and other while ensuring that all
functions in the Department of Social Services as are
appropriate or necessary to comply with applicable federal law,
recognizing that reestablishment of such localized system requires careful
planning and flexibility in its implementation.
To that end the Department shall, as soon as practicable, proceed with the
necessary planning and implementation to establish at least in each judicial
district a location at which Support for financially dependent children
and their custodians may be paid by obligors and from which payees may
receive such payments, unless the payments are in cases in which public
assistance is being paid. Such implementation shall be accomplished by July 1,
1988, unless such date be extended by mutual agreement of the Department, the
Secretary of Health and Human Resources and the Committee on District
Courts in district offices located within the Commonwealth.
The Department shall have the authority to establish such additional locations
within judicial districts as its resources may permit. In the implementation
hereof the Department shall have authority to enter into contracts with clerks
of juvenile and domestic relations district courts with the approval of the
Committee on District Courts, the Department of Juvenile Justice, local
departments of social services and any other appropriate public or private
entities to enforce, collect, account for and disburse payments for child or
spousal support.
The Division of Child Support Enforcement within the Department of Social Services shall be authorized to issue checks to implement the disbursement of funds pursuant to the provisions of this section.
The Department shall submit a report to the Committee on District Courts
by August 1, 1987, advising of its plans to implement the requirements hereof.
The Committee on District Courts shall have authority to disapprove any portion
of such plans with the concurrence of the Secretary of Health and Human
Resources, and with such concurrence direct a modification thereof.
The Committee on District Courts is directed to cooperate with the
Department in fulfilling its responsibilities to establish a localized system
of the functions described herein.
§ 63.1-249. (Delayed effective date) Purpose of chapter; powers and duties of the Department and the Committee on District Courts.
It is the purpose of this chapter to promote the efficient and accurate
collection, accounting and receipt of support for financially dependent
children and their custodians, and to further the effective and timely
enforcement of such support. The centralization of these functions being
largely accomplished by Chapter 488 of the Acts of Assembly, 1985, and thereby
resulting in consequences inconsistent with such purposes, it is the further
purpose of this chapter to correct the inefficiencies of such centralization by
reestablishing a localized system of collection and disbursement of such
support, with appropriate local accounting, while maintaining centralized
accounting, enforcement and other while ensuring that all
functions in the Department of Social Services as are appropriate or
necessary to comply with applicable federal law, recognizing that
reestablishment of such localized system requires careful planning and
flexibility in its implementation.
To that end the Department shall, as soon as practicable, proceed with the
necessary planning and implementation to establish at least in each judicial
district a location at which Support for financially dependent children
and their custodians may be paid by obligors and from which payees may
receive such payments, unless the payments are in cases in which public
assistance is being paid. Such implementation shall be accomplished by July 1,
1988, unless such date be extended by mutual agreement of the Department, the
Secretary of Health and Human Resources and the Committee on District
Courts in district offices located within the Commonwealth.
The Department shall have the authority to establish such additional locations
within judicial districts as its resources may permit. In the implementation
hereof the Department shall have authority to enter into contracts with clerks
of family courts with the approval of the Committee on District Courts, the
Department of Juvenile Justice, local departments of social services and any
other appropriate public or private entities to enforce, collect, account for
and disburse payments for child or spousal support.
The Division of Child Support Enforcement within the Department of Social Services shall be authorized to issue checks to implement the disbursement of funds pursuant to the provisions of this section.
The Department shall submit a report to the Committee on District Courts
by August 1, 1987, advising of its plans to implement the requirements hereof.
The Committee on District Courts shall have authority to disapprove any portion
of such plans with the concurrence of the Secretary of Health and Human
Resources, and with such concurrence direct a modification thereof.
The Committee on District Courts is directed to cooperate with the
Department in fulfilling its responsibilities to establish a localized system
of the functions described herein.
§ 63.1-250. Definitions.
Unless a different meaning is plainly required by the context, the following words and phrases as hereinafter used in this chapter shall have the following meanings:
"Administrative order" means a noncourt-ordered legally enforceable support obligation having the force and effect of a support order established by the court.
"Assignment of rights" means the legal procedure whereby an individual assigns support rights to the Commonwealth on behalf of a dependent child or spouse and dependent child.
"Authorization to seek or enforce a support obligation" means a signed authorization to the Commonwealth to seek or enforce support on behalf of a dependent child or a spouse and dependent child or on behalf of a person deemed to have submitted an application by operation of law.
"Caretaker" means a parent, relative, guardian or other person whose needs are included in a public assistance payment under the aid to families with dependent children program.
"Child support services" includes any civil, criminal or administrative action taken by the Division of Child Support Enforcement to establish, modify, enforce, or collect child support, or child and spousal support.
"Commissioner" means the Commissioner of the State Department of Social Services, his designee or authorized representative.
"Court order" means any judgment or order of any court having jurisdiction to order payment of support or an order of a court of comparable jurisdiction of another state ordering payment of a set or determinable amount of support moneys.
"Debt" means the total unpaid support obligation established by court order, administrative process or by the payment of public assistance and owed by a responsible person to either the Commonwealth or to his dependent(s).
"Department" means the State Department of Social Services.
"Dependent child" means any person who meets the eligibility criteria set forth in § 63.1-105, whose support rights have been assigned or whose authorization to seek or enforce a support obligation has been given to the Commonwealth and whose support is required by Titles 16.1 and 20.
"Director" means the Commissioner of the State Department of Social Services, his designee or authorized representative.
"Disposable earnings income" means that part of the
earnings income due and payable of any individual
remaining after the deduction from those earnings of any amount
required by law to be withheld.
"Earnings" means current or future income due from the responsible
person's employer and compensation paid or payable for personal services,
whether denominated as wages, salary, commission, bonus, or otherwise, and
specifically includes periodic payments currently being made by the responsible
person pursuant to pension or retirement programs, unemployment compensation
benefits, workers' compensation benefits, debts owed the responsible person and
any income or profits due the responsible person from any source, including
gambling, lotteries, prizes or any other windfall or other payment of any type,
except where excluded by state or federal law.
"Employee" means any individual receiving income.
"Employer" means the source of any income.
"Financial institution" means a depository institution, an institution-affiliated party, any federal credit union or state credit union including an institution-affiliated party of such a credit union, and any benefit association, insurance company, safe deposit company, money market mutual fund, or similar entity authorized to do business in this Commonwealth.
"Financial records" includes, but is not limited to, records held by employers showing earnings, profit sharing contributions and benefits paid or payable and records held by financial institutions, broker-dealers and other institutions and entities showing bank accounts, IRA and separate contributions, gross winnings, dividends, interest, distributive share, stocks, bonds, agricultural subsidies, royalties, prizes and awards held for or due and payable to a responsible person.
"Health care coverage" means any plan providing hospital, medical or surgical care coverage for dependent children provided such coverage is available and can be obtained by a responsible person, as that term is defined in this section, at a reasonable cost.
"Income" means any periodic form of payment due an individual from any source and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, payments pursuant to a pension or retirement program, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, net rental income, gifts, prizes or awards.
"Mistake of fact" means an error in the identity of the payor or the amount of current support or arrearage.
"Net income" means that income remaining after the following deductions have been taken from gross income: federal income tax, state income tax, federal income compensation act benefits, any union dues where collection thereof is required under federal law, and any other amounts required by law.
"Payee" means any person to whom spousal or child support is to be paid.
"Reasonable cost" pertaining to health care coverage means available through employers, unions or other groups without regard to service delivery mechanism.
"Responsible person" means any obligor or person obligated under Virginia law for support of a dependent child or the child's caretaker.
§ 63.1-250.3. Withholding from income; notices required; priorities; orders from other states.
A. As part of every administrative support order directing a responsible person
to pay child or child and spousal support or by separate order at any time
thereafter, provision shall be made for withholding from the earnings
income of the responsible person the amount of the withholding
order plus an amount to be applied toward liquidation of arrearages if the
responsible person fails to make payments in an amount equal to the support
payable for one month. The total amount withheld shall not exceed the maximum
amount permitted under § 34-29.
B. Upon default of an administrative or judicial support order, the Department
of Social Services shall serve notice on the responsible person of the
delinquency in accordance with the provisions of §§ 8.01-296,
8.01-327, or § 8.01-329 or by certified mail, return receipt
requested, or service may be waived electronic means,
including facsimile transmission, for delivery to the responsible person.
The obligee shall also be sent a copy of such notice. The notice shall inform
the responsible person (i) of the amount that will be withheld, (ii) that the
withholding applies to any current or subsequent period of employment, (iii) of
the right to contest but that the only basis for contesting the withholding is
a mistake of fact, (iv) that a written request to contest the withholding must
be made to the Department of Social Services within ten days of receipt of the
notice, (v) of the actions that will be taken by the Department if a request to
contest is noted, which shall include the opportunity to present his
objections, which shall be limited to a mistake of fact, to the administrative
hearing officer at a hearing held pursuant to § 63.1-267.1, (vi) that a
determination on the contest will be made no later than forty-five days from
the date of service of such notice, and (vii) that payment of overdue support
upon receipt of the required notice shall not be a bar to the implementation of
withholding. Upon service of the notice on the employer for delivery to
the obligor, a copy shall be sent by first-class mail to the obligee.
C. The responsible person's employer shall be issued by certified mail,
return receipt requested, or by electronic means an administrative order
conforming to § 20-79.3 for mandatory withholding of earnings. The rights
and responsibilities of an employer with respect to the order are set out in
§ 20-79.3.
D. The Department of Social Services shall have the authority in the issuance of an administrative order under § 20-79.3, based on an existing court order, to convert the terms of payment to conform with the obligor's pay period interval. The Department of Social Services shall utilize the conversion formula established by the Committee on District Courts.
E. If the Department of Social Services or the Department's designee receives
payments deducted from earnings income of an obligor
pursuant to more than one administrative order or a combination of judicial and
administrative orders, the Department or the Department's designee shall
allocate such payments among the obligees under such orders with priority given
to payment of the order for current support. Where the Department or the
Department's designee receives payments pursuant to two or more orders for
current support, the Department or the Department's designee shall prorate the
payments received on the basis of the amounts due under each such order. Upon
satisfaction of any amounts due for current support, the Department or the
Department's designee shall prorate the remainder of the payments received on
the basis of amounts due under any orders for accrued arrearages.
F. Administrative orders for withholding from earnings income
shall be promptly terminated or modified by the Department when (i) the
obligation to support has been satisfied and arrearages have been paid, (ii)
the whereabouts of the child or child and caretaker become unknown, or (iii)
modification is appropriate because of a change in the amount of the
obligation.
G. If a court of competent jurisdiction or the agency operating pursuant to an
approved state plan under Sections 452 and 454 of the Social Security Act in
any state, territory of the United States or the District of Columbia has
ordered a person to pay child or child and spousal support, upon notice and
hearing as provided in this section, the Department shall issue an order,
conforming to § 20-79.3, to the responsible person's employer in this
Commonwealth to withhold from the earnings income of the
responsible person in the same manner as provided in this section for
administrative orders originating in this Commonwealth. Similar orders of the
Department may be enforced in a similar manner in such other state, territory
or district.
§ 63.1-256. Orders to withhold and to deliver property of debtor; issuance and service; contents; right to appeal; answer; effect; delivery of property; bond to release; fee; exemptions.
A. After notice containing an administrative support order has been served or
service has been waived or accepted, an opportunity for a hearing has been
exhausted and a copy of the order furnished as provided for in §
63.1-252.1, or whenever a court order for child or child and spousal support
has been entered, the Commissioner is authorized to issue to any person, firm,
corporation, association, political subdivision or department of the
Commonwealth, orders to withhold and to deliver property of any kind including,
but not restricted to, earnings income of the debtor,
when the Commissioner has reason to believe that there is in the possession of
such person, firm, corporation, association, political subdivision or
department of the Commonwealth, property which is due, owing, or belonging to
such debtor. The orders to withhold and to deliver shall take priority over all
other debts and creditors under state law of such debtor except with respect to
a prior payroll deduction ordered pursuant to §§ 20-79.1, 20-79.2,
63.1-250.3 or § 63.1-258.1.
B. The order to withhold shall also be served upon the debtor within a reasonable time thereafter, and shall state the amount of the support debt accrued. The order shall state in summary the terms of §§ 63.1-257 and 63.1-258 and shall be served in the manner prescribed for the service of a warrant in a civil action or by certified mail, return receipt requested. The order to withhold shall advise the debtor that this order has been issued to cause the property of the debtor to be taken to satisfy the debt and advise of property that may be exempted from this order. The order shall also advise the debtor of a right to appeal such order based upon a mistake of fact and that if no appeal is made within ten days of being served, his property is subject to be taken.
C. If the debtor believes such property is exempt from this debt, within ten days of the date of service of the order to withhold, the debtor may file an appeal to the Commissioner stating any exemptions that may be applicable. If the Commissioner receives a timely appeal, a hearing shall be promptly scheduled before a hearing officer upon reasonable notice to the obligee. The Commissioner may delegate authority to conduct the hearing to a duly qualified hearing officer who shall consider the debtor's appeal.
The decision of the hearing officer shall be in writing and shall set forth the
debtor's rights to appeal an adverse decision of the hearing officer pursuant
to § 63.1-268.1. The decision shall be served upon the debtor in
accordance with the provisions of §§ 8.01-296,
§ 8.01-327 or § 8.01-329 or mailed to the debtor at his
last known address by certified mail, return receipt requested, or service may
be waived. A copy of such decision shall also be mailed to the obligee. Such
decision shall establish whether the debtor's property is exempt under state or
federal laws and regulations.
D. Any person, firm, corporation, association, political subdivision or department of the Commonwealth upon whom service has been made is hereby required to answer such order to withhold within ten days, exclusive of the day of service, under oath and in writing, and shall file true answers to the matters inquired of therein. In the event there is in the possession of any such person, firm, corporation, association, political subdivision or department of the Commonwealth, any property which may be subject to the claim of the State Department of Social Services, such property shall be withheld immediately upon receipt of the order to withhold, together with any additional property received by such person, firm, corporation, association, political subdivision, or department of the Commonwealth valued up to the amount of the order until receipt of an order to deliver or release. The property shall be delivered to the Commissioner upon receipt of an order to deliver issued upon the expiration of the obligor's opportunity to appeal or the exhaustion of the obligor's appeal rights, and following the expiration of the appeal period. Otherwise, the property shall be delivered to the Commissioner upon receipt of an order to deliver based upon the decision of the hearing officer, or of the juvenile and domestic relations district court in cases in which the action was appealed pursuant to § 63.1-268.1, upholding the agency's action. Where money is due and owing under any contract of employment, express or implied, or is held by any person, firm, corporation, or association, political subdivision or department of the Commonwealth subject to withdrawal by the debtor, such money shall be delivered by remittance payable to the order of the Treasurer of Virginia. The person, firm, corporation, political subdivision or department of the Commonwealth herein specified shall be entitled to receive from such debtor a fee of five dollars for each answer or remittance on account of such debtor. The foregoing is subject to the exemptions contained in §§ 63.1-257 and 63.1-261.
E. Delivery to the Commissioner shall serve as full acquittance and the Commonwealth warrants and represents that it shall defend and hold harmless for such actions persons delivering money or property to the Commissioner pursuant to this chapter.
F. An order issued to an employer for withholding from the earnings of an employee pursuant to this section shall conform to § 20-79.3. The rights and obligations of an employer with respect to the order are set out in § 20-79.3.
§ 63.1-256. (Delayed effective date) Orders to withhold and to deliver property of debtor; issuance and service; contents; right to appeal; answer; effect; delivery of property; bond to release; fee; exemptions.
A. After notice containing an administrative support order has been served or
service has been waived or accepted, an opportunity for a hearing has been
exhausted and a copy of the order furnished as provided for in §
63.1-252.1, or whenever a court order for child or child and spousal support
has been entered, the Commissioner is authorized to issue to any person, firm,
corporation, association, political subdivision or department of the
Commonwealth, orders to withhold and to deliver property of any kind including,
but not restricted to, earnings income of the debtor,
when the Commissioner has reason to believe that there is in the possession of
such person, firm, corporation, association, political subdivision or
department of the Commonwealth, property which is due, owing, or belonging to
such debtor. The orders to withhold and to deliver shall take priority over all
other debts and creditors under state law of such debtor except with respect to
a prior payroll deduction ordered pursuant to §§ 20-79.1, 20-79.2,
63.1-250.3 or § 63.1-258.1.
B. The order to withhold shall also be served upon the debtor within a reasonable time thereafter, and shall state the amount of the support debt accrued. The order shall state in summary the terms of §§ 63.1-257 and 63.1-258 and shall be served in the manner prescribed for the service of a warrant in a civil action or by certified mail, return receipt requested. The order to withhold shall advise the debtor that this order has been issued to cause the property of the debtor to be taken to satisfy the debt and advise of property that may be exempted from this order. The order shall also advise the debtor of a right to appeal such order based upon a mistake of fact and that if no appeal is made within ten days of being served, his property is subject to be taken.
C. If the debtor believes such property is exempt from this debt, within ten days of the date of service of the order to withhold, the debtor may file an appeal to the Commissioner stating any exemptions that may be applicable. If the Commissioner receives a timely appeal, a hearing shall be promptly scheduled before a hearing officer upon reasonable notice to the obligee. The Commissioner may delegate authority to conduct the hearing to a duly qualified hearing officer who shall consider the debtor's appeal.
The decision of the hearing officer shall be in writing and shall set forth the
debtor's rights to appeal an adverse decision of the hearing officer pursuant
to § 63.1-268.1. The decision shall be served upon the debtor in
accordance with the provisions of §§ 8.01-296,
§ 8.01-327 or § 8.01-329 or mailed to the debtor at his
last known address by certified mail, return receipt requested, or service may
be waived. A copy of such decision shall also be mailed to the obligee. Such
decision shall establish whether the debtor's property is exempt under state or
federal laws and regulations.
D. Any person, firm, corporation, association, political subdivision or department of the Commonwealth upon whom service has been made is hereby required to answer such order to withhold within ten days, exclusive of the day of service, under oath and in writing, and shall file true answers to the matters inquired of therein. In the event there is in the possession of any such person, firm, corporation, association, political subdivision or department of the Commonwealth, any property which may be subject to the claim of the State Department of Social Services, such property shall be withheld immediately upon receipt of the order to withhold, together with any additional property received by such person, firm, corporation, association, political subdivision, or department of the Commonwealth valued up to the amount of the order until receipt of an order to deliver or release. The property shall be delivered to the Commissioner upon receipt of an order to deliver issued upon the expiration of the obligor's opportunity to appeal or the exhaustion of the obligor's appeal rights, and following the expiration of the appeal period. Otherwise, the property shall be delivered to the Commissioner upon receipt of an order to deliver based upon the decision of the hearing officer, or of the family court in cases in which the action was appealed pursuant to § 63.1-268.1, upholding the agency's action. Where money is due and owing under any contract of employment, express or implied, or is held by any person, firm, corporation, or association, political subdivision or department of the Commonwealth subject to withdrawal by the debtor, such money shall be delivered by remittance payable to the order of the Treasurer of Virginia. The person, firm, corporation, political subdivision or department of the Commonwealth herein specified shall be entitled to receive from such debtor a fee of five dollars for each answer or remittance on account of such debtor. The foregoing is subject to the exemptions contained in §§ 63.1-257 and 63.1-261.
E. Delivery to the Commissioner shall serve as full acquittance and the Commonwealth warrants and represents that it shall defend and hold harmless for such actions persons delivering money or property to the Commissioner pursuant to this chapter.
F. An order issued to an employer for withholding from the earnings of an employee pursuant to this section shall conform to § 20-79.3. The rights and obligations of an employer with respect to the order are set out in § 20-79.3.
§ 63.1-257. Certain amount of income which may be withheld by lien or order.
Whenever a support lien, order to withhold and deliver property or order for
mandatory withholding of earnings income is served upon
any person, firm, corporation, association, political subdivision or department
of this Commonwealth asserting a support debt against earnings
income and there are any such earnings income
in the possession of such person, then that person shall withhold
from the disposable earnings income as defined in §
63.1-250 (i) the amount stated in the lien, the order to withhold and deliver
property, or the order for mandatory withholding of earnings
income; or (ii) the maximum amount permitted under § 34-29,
whichever is less. The order shall show the maximum percentage of disposable
earnings income which may be withheld pursuant to §
34-29. The lien or order to withhold and deliver shall continue to operate and
require such person, firm, corporation, association, political subdivision, or
department of this Commonwealth to withhold the nonexempt portion of
earnings income at each succeeding earnings
income disbursement interval until the entire amount of the
support debt stated in the lien has been withheld. The order for mandatory
withholding of earnings income continues until further
notice by certified mail, return receipt requested, from the Department of
Social Services is received by the employer.
§ 63.1-258.1. Immediate withholding from income; exception; notices required.
A. Every administrative support order directing a responsible person to pay
child or child and spousal support shall provide for immediate withholding from
the earnings of the responsible person responsible person's
income as defined in § 63.1-250 of an amount for current support
plus an amount to be applied toward liquidation of arrearages, if any, unless
the obligor and the Department, on behalf of the obligee, agree to a written
alternative payment arrangement, or good cause is shown. Good cause shall be
based upon a written determination that, and explanation by the Department of
why, implementing immediate wage withholding would not be in the
best interests of the child. The total amount withheld shall not exceed the
maximum amount permitted under § 34-29.
B. The order shall include, but not be limited to, notice (i) of the amount
that will be withheld, (ii) that the withholding applies to any current or
subsequent period of employment, (iii) of the right to contest whether a duty
of support is owed and the information specified in the administrative order is
correct, (iv) that a written request to appeal the withholding shall be made to
the Department of Social Services within ten days of receipt of the notice, and
(v) of the actions that will be taken by the Department if an appeal is noted,
which shall include the opportunity to present his objections to the
administrative hearing officer at a hearing held pursuant to § 63.1-267.1.
Upon service of the order on the employer by certified mail,
return receipt requested, or service in accordance with
the provisions of §§ 8.01-296, § 8.01-327
or § 8.01-329 or waiver of service, the employer shall
deliver the order to the responsible person. A copy shall be sent by
first-class mail to the obligee.
C. The responsible person's employer shall be issued by certified mail,
return receipt requested, or by electronic means, including
facsimile transmission, an administrative order for mandatory withholding
of earnings income which shall conform to § 20-79.3.
The rights and responsibilities of an employer with respect to such orders are
set out in § 20-79.3.
D. If the Department of Social Services or its designee receives payments
deducted from earnings income of an obligor pursuant to
more than one administrative order or a combination of judicial and
administrative orders, the Department shall ensure that such payments are
allocated among the obligees under such orders with priority given to payment
of the order for current support. Where the Department or its designee receives
payments pursuant to two or more orders for current support, the payments
received shall be prorated on the basis of the amounts due under each such
order. Upon satisfaction of any amounts due for current support, the remainder
of the payments received shall be prorated on the basis of amount due under
each such order. Upon satisfaction of any amounts due for current support, the
remainder of the payments received shall be prorated on the basis of amounts
due under any orders for accrued arrearages.
E. Administrative orders for withholding from earnings income
shall be promptly terminated or modified by the Department when (i) the
obligation to support has been satisfied and arrearages have been paid, (ii)
the whereabouts of the child or child and caretaker become unknown,
or (iii) modification is appropriate because of a change in the amount of the
obligation.