CHAPTER 115

FORMERLY

HOUSE BILL NO. 232

AN ACT TO AMEND TITLE 13, DELAWARE CODE RELATING TO INTERSTATE WITHHOLDING FOR THE PAYMENT OF SUPPORT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE: Section 1. Amend Title 13, Delaware Code, by adding a new Chapter 4 to read as follows:

"CHAPTER 4. INTERSTATE WITHHOLDING ACT

§401 - GENERAL PROVISIONS

(a) Purpose: The purpose of this Act is to enhance the enforcement of support obligations by providing a quick and effective procedure for the withholding of income derived in this jurisdiction to enforce support orders of other jurisdictions and by requiring that Income withholding. to enforce the support orders of this jurisdiction, be sought In other jurisdictions. This Act shall be construed liberally to effect that purpose.

(b) Definitions: As used in this Act:

(1) 'Support order' means any order, decree, or Judgment for the support. or for the payment of arrearages on such support, of a child, spouse, or former spouse issued by a court or agency of another jurisdiction, whether interlocutory or final, whether or not prospectively or retroactively modifiable, whether incidental to a proceeding for divorce, judicial or legal separation, separate maintenance, paternity, guardianship. civil protection, or otherwise.

(2) 'Jurisdiction' means any state or political subdivision. territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

(3) 'Court' means the Family Court of this State and, when the context requires, means either the court or agency of any other Airisdietion with functions similar to those defined in this Act, including the issuance and enforcement of support orders.

(4) 'Agency' means the Bureau of Child Support Enforcement of this State and, when the context requires, means either the court or agency of any other jurisdiction with functions similar to those defined in this Act, including the issuance and enforcement of support orders.

(5) 'Child' means any child, whether above or below age of majority, with respect to whom a support order exists.

(6) 'Obligor' means any person required to make payments under the terms of a support order for a child, spouse, or former spouse.

(7) 'Obligee' means any person or entity which is entitled to receive support under an order of support and shall include an agency of another jurisdiction to which a person has assigned his or her right to support.

(8) 'Income' means income as defined in section 513(b) (5) of this Title.

(9) 'Obligee Employer' means any payor of income.

(10) 'Income derived in this jurisdiction' means any income, the payor of which is subject to the jurisdiction of this State for the purpose of imposing and enforcing income withholding under section 513(b) of this Title.

(c) Remedies Additional to Those Now Existing: The remedy herein provided is in addition to, and not in substitution for, any other remedy otherwise available to enforce a support order of another jurisdiction. Relief under this Act shall not be denied, delayed, or otherwise affected because of the availability of other remedies, nor shall relief under any other statute be delayed or denied because of the availability of this remedy.

§402 INITIATION OF INCOME WITHHOLDING AND COOPERATION WITH OTHER JURISDICTIONS

On behalf of any client for whom the Bureau of Child Support Enforcement is already providing services, or on application of a resident of this State, an obligee or obligor of a support order Issued by this State, or an agency to whom the obligee has assigned support rights. the Bureau shall promptly request the agency of another Jurisdiction in which the obligor of a support order derives income to enter the order for the purpose of obtaining Income withholding against such Income. The Bureau shall compile and transmit promptly to the agency of the other Jurisdiction all documentation required to enter a support order for this purpose. The Burcau also shall transmit immediately to the agency of the other Jurisdiction a certified copy of any subsequent modifications of the support order. If the Bureau receives notice that the obligor is contesting Income withholding in another jurisdiction, it shall immediately notify the individual obligee of the date, time, and place of the hearings and of the obligee's right to attend.

§403 - RESPONSIBILITIES FOR ENTERING A SUPPORT ORDER OF ANOTHER JURISDICTION FOR PURPOSES OF INCOME WITHHOLDING

(a) Upon receiving a support order of another jurisdiction with the documentation specified in subsection (b) from an agency of another jurisdiction, the Bureau of Child Support Enforcement shall file these documents with the Clerk of the Family Court in which withholding is being sought. The Clerk of the Court shall accept the documents filed and such acceptance shall constitute entry of the support order under this Act.

(b) The following documentation is required for the entry of a support order of another Jurisdiction:

(1) a certified copy of the support ordcr with all modifications;

(2) a certified copy of an income withholding order, if any, still in effect;

(3) a copy of the portion of the income withholding statute of the jurisdiction which issued the support order which states the requirements for obtaining income withholding under the law of that jurisdiction;

(4) a sworn statement of the obligee or certified statement of the agency of the arrearages and the assignment of support rights, if any.

(5) a statement of:

(a) the name, address, and social security number of the obligor, if known;

(b) the name and address of the obligor's employer or of any other source of income of the obligor derived in this State against which income withholding is sought;

(c) the name and address of the agency or person to whom support payments collected by income withholding shall be transmitted.

(c) If the documentation received by the Bureau under subsection (a) does not conform to the requirements of subsection (b), the Bureau shall remedy any defect which it can without the assistance of the requesting agency. If the Bureau is unable to make such corrections, the requesting agency shall immediately be notified of the necessary additions or corrections. In neither case shall the documentation be returned. The Bureau shall accept the documentation required by subsections (a) and (b) even if it is not in the usual form required by state or local rules, so long as the substantive requirements of these subsections are met.

(d) A support order entered under subsection (a) shall be enforceable by income withholding against income derived in this State in the manner and with the effect as set forth in sections 404 through 411 of this Chapter and subsection 513(b) of this Title. Entry of the order shall not confer Jurisdiction on the courts of this State for any purpose other than income withholding.

§404 NOTICE

(a) Within 10 working days after a support order is entered pursuant to section 403(a) of this Chapter, the Clerk of the Court shall send by certified or registered mall to the obligor, at the address given, a notice of proposed income withholding. This notice shall be in conformity with that required under $513(b) (2); provided, however, that the- notice shall also advise the obligor that the income withholding was requested on the basis of a support order of another Jurisdiction. The date of serving notice on the obligor shall be the equivalent of the filing of a verified notice for the purpose of measuring time for the obligor to file an affidavit in opposition to the attachment and for holding a hearing and rendering a decision.

(b) The provisions of $513(b) (3) of this Title shall apply if obligor seeks to contest the proposed income withholding; provided, however, that if a hearing is scheduled the Court shall immediately notify the requesting agency of the date, time, and place of the hearing and of the obligee's right to attend the hearing.

§405 INCOME WITHHOLDING HEARING

At any hearing contesting proposed Income withholding based on a support order entered under Section 403 of this Chapter, the entered order, accompanying sworn or certified statement, and a certified copy of an Income withholding Order, if any, still in effect shall constitute prima facie proof, without further proof or foundation, that the support order is valid, that the amount of currcnt support payments and arrearages is as stated, and that the obligee would be entitled to Income withholding under the law of the jurisdiction which issued the support order.

(a) Once a prima facie case has been established, the obligor may raise only those defenses set forth in subsection 513(b) (3) of this Title. The burden shall be on the obligor to establish these defenses.

(b) If the obligor presents evidence which constitutes a full or partial defense, the court shall, on the request of the obligee, continue the case to permit further evidence relative to the defense to be adduced by either party, provided, however, that if the obligor acknowledges liability sufficient to entitle the obligee to Income withholding, the court shall require income withholding for the payment of current support payments under the support order and of so much of any arrearages as is not in dispute, while continuing the case with respect to those matters still in dispute. The court shall determine those matters still in dispute as soon as possible, and if appropriate shall modify the withholding order to conform to that resolution.

(c) In addition to other procedural devices available to a party, any party to the proceeding or a guardian ad them or other representative of the child may adduce testimony of witnesses in another state, including the parties and any of the children, by deposition, by written discovery, by photographic discovery such as videotaped depositions or by personal appearance before the court by telephone or photographic means. The court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken.

(d) A court of this state may request the appropriate court or agency of another state to hold a hearing to adduce evidence, to permit a deposition to be taken before the court or agency, to order a party to produce or give evidence under other procedures of that state and to forward to the Court of this state certified copies of the evidence adduced in compliance with the request.

(e) Upon request of a court or agency of another state the Courts of this state which are competent to hear support matters may order a person in this state to appear at a hearing or disposition before the Court to adduce evidence or to produce or give evidence under other procedures available in this state. A certified copy of the evidence adduced, such as a transcript or videotape, shall be forwarded by the Clerk of Court to the requesting court or agency.

(f) A person within this state may voluntarily testify by statement or affidavit in this state for use in a proceeding to obtain income withholding outside this state.

§406 - INCOME WITHHOLDING ORDER

If the obligor does not request a hearing in the time provided, or if a hearing Is held and it Is determined that the obligee has or is entitled to income withholding under the local law of the jurisdiction which issued the support order, the Court shall issue an income withholding order under subsection 513(b) of this Title. The Court flail notify the requesting agency of the date upon which withholding will begin.

§407 - NOTICE TO EMPLOYER AND OTHER PROVISION

The provisions of 5513(b) (6) through (11) of this Title apply to income withholding based on a support order of another jurisdiction entered under this Act.

§408 - DISTRIBUTION OF COLLECTED SUPPORT PAYMENTS

(a) The income withholding order shall direct payment to be made to the Bureau of Child Support Enforcement. The Bureau shall promptly transmit payments received pursuant to an income withholding order based on a support order of another jurisdiction entered under this Act to the agency or person designated in section 403(b) (5) (c) of this Chapter.

(b) A support order entered pursuant to section 403 of this Chapter does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state. Amounts collected by any withholding of income shall be credited against the amounts accruing or accrued for any period under any support orders issued either by this state or by a sister state.

§409 CHANGES

modification to a support order entered pursuant to section 403 of this Chapter, shall amend or modify the income withholding order to conform to the modified support order.

(b) Changes in jurisdiction: If the Bureau of Child Support Enforcement determines that the obligor has obtained employment In another state or has a new or additional source of income in another state, it shall notify the agency which requested the income withholding of the changes within five working days of receiving that information and shall forward to that agency all information it has or can obtain with respect to the obligor's new address and the name and address of the obligor's new employer or other source of income. The Bureau shall include with the notice a certified copy of the income withholding Order in effect in this state.

§410 - VOLUNTARY INCOME WITHHOLDING

Any person who is the obligor on a support order of another jurisdiction may obtain voluntary income withholding by filing with the Court a request for such withholding and a certified copy of the support order of a sister state. The court shall issue an income withholding Order under subsection 513(b) of this Title. Payment shall be made to the Bureau of Child Support Enforcement.

§411 - CHOICE OF LAW

(a) The local law of this state shall apply in all actions and proceedings concerning the issuance, enforcement and duration of income withholding orders issued by a Court of this State, which is based upon a support order of another Jurisdiction entered pursuant to section 403 of this Chapter, except as provided in subsections (b) and (c) of this section.

(b) The local law of the jurisdiction which issued the support order shall govern the following:

(1) the interpretation of the support order entered under section 403 of this Chapter, including amount, form of payment, and the duration of support;

(2) the amount of support arrearages necessary to require the issuance of an income withholding order and;

(3) the definition of what costs, in addition to the periodic support obligation, are included as arrearages which are enforceable by income withholding, including but not limited to interest, attorney's fees, court costs, and costs of paternity testing.

(c) The Court shall apply the statute of limitations for maintaining an action on arrearages of support payments of either the local law of this state or of the state which issued the support order entered under this Act, whichever is longer."

Section 2. If any provision of this Act of the application thereof to any person or circumstance is held Invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared severable.

Approved July 3, 1985