HOUSE BILL NO. 404
AS AMENDED BY HOUSE AMENDMENT NO. I
AN ACT TO AMEND TITLES 10, 13, 29 AND 30 OF THE DELAWARE CODE RELATING TO CHILD SUPPORT ENFORCEMENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two- thirds of all members elected to each House thereof concurring therin):
Section 1. Amend Sec. 513, Title 13, Delaware Code by deleting the existing paragraph (a) (12) thereof; designating existing paragraph (a) (13) as new paragraph (a) (12); and by designating existing subsection (b) as paragraph (b) (1) and substituting "income" for "wage(s)" where it appears in the new paragraph (b) (I); and by adding new paragraphs (b) (2) through (12) as follows:
"(2) Where no withholding order Is in effect for orders of support entered under this Chapter, Chapter 6 of this title, or where the order is one of unallocated alimony and child support under Chapter 15 of this title including orders issued prior to the effective date of this Act, the obligor's Income shall be attached automatically upon the filing of a verified notice by the obligee of a default in payment for seven working days. or earlier at the request of the obligor.
If the existing support order does not include payment on arrears, then the income attachment shall be Issued in the amount of current support plus an amount payable toward arrears of up to 10 percent of the current support order or $5. whichever is greater. The verified notice shall specify the amount requested to reduce the arrears. The remedy specified for recovery of arrearages shall be in addition to and not in substitution for remedies available elsewhere in this Title.
(3) Where an order for attachment is to be issued under this subsection or Chapter 4 of this Title, the obligor shall be notified upon the filing of the verified notice. The obligor shall have 10 days from the date of filing to file an affidavit in opposition to the attachment based only upon an assertion of a mistake of fact concerning the identity of the parties, the delinquency of payment, or the jurisdiction of the Court. Any other defenses to the amount of the obligation may be raised only In accordance with other provisions of this Title. Full payment upon receipt of the verified notice shall not constitute grounds for contesting withholding. The Court shall, upon consideration of the affidavit(s), determine whether an Issue of material fact or defense permissible under this section exists and shall, in accordance with that determination, either schedule a hearing or immediately issue the attachment. In either event, a final determination shall be made and both parties notified within 45 days of the filing of the verified notice. If the obligor fails to file an affidavit in opposition to the attachment within 10 days of the filing of the verified notice, the Court shall immediately issue the attachment.
(4) In all cases where the Division of Child Support Enforcement does In fact represent the State and/or the obligee, the Division shall be authorized to file the verified notice on behalf of said obligee.
(5) For purposes of Chapter 4, 5 and 6 of this Title, 'Income' is defined as any form of payment made by the obligor's employer to an individual, regardless of source, including. but not limited to: wages, salary. commission, vacation pay. severance pay, bonuses, compensation as an independent contractor, workers' compensation, disability, sick pay, SUB benefits, unemployment compensation, railroad retirement, pensions, annuity and retirement benefits; provided, however. that income excludes:
(i) Any amounts required by law to be withheld, other than creditor claims, including, but not limited to, Federal. State and local taxes. Social Security and other mandatory retirement and disability contributions;
(U) Union dues;
(ill) Any amounts exempted by Federal law;
(iv) Public Assistance payments; and
(v) Tax refunds, which shall be governed by Sec. 1205-1209 of Title 30 and Sec. 454 of the Social Security Act.
(6) 'Employer' includes an individual. partnership, association, corporation, trust, Federal agency, State agency or political subdivision paying or obligated to pay income. Any attachment or execution to enforce an order for child support or unallocated alimony and child support entered under this Title shall not be subject to the exemptions or limitations set forth in Sec. 3502 or 4913 of Title 10 or Sec. 5503 of Title 29. Said attachment for support shall also have priority over any other attachment, except an attachment for Federal tax liens, regardless of whether such other attachment was perfected prior to the support attachment. The support attachment shall be subject to the limitations set forth in Section 303(b) of the Consumer Credit Protection Act (15 USC. 1673(b)); provided, however, that an attachment of unemployment compensation shall not exceed 50 percent of the weekly payment thereof.
(7) Upon receipt of a certified copy of an order of income withholding from the Court, the employer shall deduct the specified sum from the wages due the obligor- employee and shall, at or before the time the obligor- employer is paid, mail or otherwise deliver the said deduction to the Division of Child Support Enforcement or the obligee as directed, and shall continue to do so for so long as the obligor remains in his employ or until the Court orders otherwise. The withholding shall be effective with regard to any payment by the employer to the obligor after a reasonable time to give effect to the withholding, but in no event shall such withholding be delayed more than 14 days from the date of its receipt by the employer. In every case, the remittance shall be by check or money order payable as directed and the remittance shall specify the obligor- employee's name and social security number. In the event the employer is withholding from more than one employee, and the payee is the Division of Child Support Enforcement, payment for the total amount may be remitted by a single check. Upon the termination of the obligor's employment, the employer shall notify the Court of said termination and shall provide the Court, if known, with the obligor- employee's last known address, along with the name and address of his future employer.
(8) Upon receipt of the certified copy of the order of income withholding from the Court by certified mall, the employer becomes primarily liable for the payment of the obligations set forth in such order, as well as such criminal and civil sanctions as the Court may impose In the event that the employer falls to comply with the terms of such income attachment and is found to be in contempt by the Court.
(9) Any employer who falls to comply with the terms of this section or who dismisses, terminates or causes the termination of a obligor's employment as a result of an attachment under this section shall be fined for the first offense not more than $1,000 or imprisoned not more than 90 days, or both, and for each subsequent offense shall be fined not more than $5,000 or imprisoned not more than I year, or both. If the employer is a corporation, criminal liability shall be established pursuant to Sec. 281-284 of Title II.
(10) Withholding of income under this Section shall remain in effect as long as the order for support upon which it is based, or any modification thereof.
(11) The Division of Child Support Enforcement is designated as the State Income Withholding Agency. The Division shall distribute all amounts received promptly in accordance with Sec. 457 of the Social Security Act and shall allocate amounts received when there is more than one obligee in accordance with rules promulgated by the Secretary of the Department of Health and Social Services."
Section 2. Amend Sec. 516, Title 13, Delaware Code by deleting subsections (b), (d), (c), (f) and (g) in their entirety and by designating existing subsections (h) and (I) as new subsections (d) and (c) respectively and adding subsections (b) and (f) to read as follows:
"(b) Order by income attachment and/or by direct payment an additional amount toward arrears in addition to any amount ordered pursuant to Sec. 513(b) of this Title.
(f) Information regarding the amount of arrearages owed by an obligor shall be made available by the Division of Child Support Enforcement to any consumer credit bureau organization upon the request of the organization, subject to the following:
(I) The amount of arrearages are not less than ;500.00.
(2) The information shall be made available only after the obligor owing the arrearages has been notified of the proposed action and given a period of 20 days to contest the accuracy of the information.
(3) A fee for furnishing the information in an amount not exceeding the actual cost thereof may be imposed on the requesting organization by the Division of Child Support Enforcement."
Section 3. Amend Sec. 512, Title 13, Delaware Code, by designating existing Sec. 512 as subsection (a) of Sec. 512 and by adding a new subsection (b) of said section to read as follows:
"(b) Title 10, Delaware Code, Section 913 notwithstanding, the report and recommendations of the Master with regard to a permanent, temporary, interim or emergency order entered under Chapters 4. S or 6 of this Title shall become effective and enforceable immediately as an Order ofthe Family Court when announced by the Master. Said Order shall remain in full force and effect unless and until a party files a petition for a review de novo within IS days of the date said Order is announced and makes application for and is granted a stay by order of a judge of the Family Court."
Section 4. Amend Sec. 515, Title 13, Delaware Code by adding new subsection (d) to said section as follows:
"(d) The Family Court shall by Rule provide for expedited procedures for the determination and enforcement of support obligations established under this Chapter, Chapter 4 and Chapter 6 of this Title. These procedures shall include, except in appropriate cases and on a showing of good cause as herein provided, the mandatory use of such expedited process before a hearing can be held before a Judge. The Court shall by Rule adopt procedures to provide, in appropriate cases, for the determination that there is good cause to proceed directly to a hearing before a judge."
Section 5. Amend Sec. 921, Title 10, Delaware Code, by adding a new subsection (13) of said section as follows:
"(13) Actions concerning appeals from administrative decisions of the Division of Child Support Enforcement, in accordance with the Delaware Administrative Procedures Act, Chapter 101 of Title 29."
Section 7. Amend Sec. 10161, Title 29, Delaware Code, by adding a new subsection (25) of said section to read as follows:
"(25) Division of Child Support Enforcement".
Section 8. Amend Sec. 1206, Title 30, Delaware Code, by striking existing subsection (a) of said section in its entirety and substituting in lieu thereof a new subsection (a) to read as follows:
"(a) 'Claimant Agency' is defined as the Department of Health and Social Services by assignment from a public assistance recipient pursuant to Title 31, Delaware Code, Sec. 503 (d), or as the legal representative of a custodial parent who has applied for non- public assistance services of the Division of Child Support Enforcement or the Department of Health and Social Services for any indebtedness due and owing to said Department."
Section 9. Amend Sec. 10102(4), Title 29, Delaware Code, by adding after the word "State" the following:
"except for appeals from the Division of Child Support Enforcement, which will be heard by the Family Court of the State."
Section 10. Amend Sec. 513 (a), Title 13, Delaware Code, by striking existing subparagraphs (1) and (2) of said section and by substituting in lieu thereof new subparagraphs (1) and (2) as follows:
"(1) Order the defendant to pay a certain sum periodically into the Division of Child Support Enforcement or directly to a dependent, his guardian, custodian, or trustee, for his support for so long as the obligation of support shall exist;
(2) Order the defendant to pay a specific total amount into the Division of Child Support Enforcement or directly to a dependent, his guardian, custodian or trustee, in a lump sum or in such stated periodic amounts as the Court deems proper;".
Section 11. The provisions of this Act shall be liberally construed in order to effectively carry out the purpose of this Act.
Section 12. If any provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not effect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act aro declared to be severable.
Section 13. This Act shall become effective 30 days after it is enacted except that Section 8 of this Act shall be effective for payments made by the State after January 1, 1987.
Approved February 3, 1986.