How is child support typically paid?
The Minnesota Child Support Payment Center, a centralized unit run by DHS, must be used to collect and disburse support payments in all IV-D cases. Again, IV-D cases include when the obligee receives or has received public assistance or when the obligor or obligee has applied for support enforcement services from the county. The payment center may also be used in other cases when support is not paid directly from the obligor to the obligee. There are a few payment vehicles. Minn. Stat. §§ 518A.54 to 518A.56.
Withholding of wages or other income
Income withholding is the preferred method of payment. The court must address income withholding in all cases by ordering that all support obligations are subject to income withholding or ordering a specific waiver of income withholding. If the court orders income withholding, either the obligee or obligor must apply for either full IV-D services or non-IV-D income withholding-only services to begin this payment method.
In IV-D cases, the court may waive income withholding if (1) one parent demonstrates to the court there is good cause for the waiver, the court makes specific findings that income withholding would not be in the child’s best interest, and past payments have been made on time, or (2) the obligee and obligor sign a written alternative agreement providing for an alternative payment arrangement that the court reviews and enters in the record. In non-IV-D cases, the court may waive automatic withholding if the parents sign a written agreement. Minn. Stat. § 518A.53.
An employer may not discharge, refuse to hire, or otherwise discipline an employee because a support withholding order exists against the employee. An employer who intentionally fails to comply with a court order for wage withholding is subject to paying interest, attorney fees, and sanctions, and can be found in contempt of court. Minn. Stat. §§ 518A.46, subd. 5: 518A.53, subd. 5, para. (c).
With this alternative to income withholding, an obligor establishes a savings account in an amount equal to two months of child support. The public authority can withdraw from the account if the obligor misses a support payment by ten days. This option is rarely used. Minn. Stat. § 518A.58.
Preauthorized transfer account. If an obligor obtains income through a method that makes income withholding ineffective (such as being self-employed), the court must order the obligor to establish and maintain a deposit account for paying support. Failure to do so subjects the obligor to contempt of court proceedings. This option is rarely used. Minn. Stat. § 518A.53, subd. 6.
In cases where the public authority is involved, direct payment from the obligor to the obligee is discouraged because it can result in problems tracking and crediting payments. In cases where the public authority is not involved, parties can make direct payments to one another if income withholding is waived.
Direct deposit permits an obligee who receives a monthly child support check from the Minnesota Child Support Payment Center to receive child support payments through an electronic transfer to the obligee’s checking account, savings account, or a stored value card account. The stored value card account allows an obligee to make purchases or withdraw cash from automatic teller machines using the stored value card.
How is support enforced if payments are not made?
Each order that initially establishes custody, parenting time, or support that is signed on or after January 1, 2007, includes a form that allows either party to request a six-month review. If a hearing is requested, the court will review whether child support is current and whether the parties are complying with the parenting provisions of the order. Minn. Stat. § 518.1781.
Parent locator services
Often, the first step in enforcing child support is locating the obligor. The county has access to the records of many state agencies, businesses, and other organizations for the purpose of locating obligors to establish paternity and child support, modify or enforce child support, or distribute collections. Minn. Stat. § 256.978.
Work reporting system
Employers are required to report all hires to DHS, excluding individuals hired for less than two months for gross earnings under $250 per month. The report information is used for support enforcement in Minnesota or interstate actions. An employer who intentionally fails to comply is subject to a civil penalty of $25 for each unreported employee (the penalty is $500 if the noncompliance is a result of a conspiracy between the employer and the employee). Additionally, both parents are required, unless otherwise ordered, to provide change in address, telephone number, driver’s license number, Social Security number, or employer information to the other party, the court, and the child support office within ten days of a change. Minn. Stat. § 256.998.
If automatic withholding was not ordered, income withholding may later be implemented. In IV-D cases, income withholding may take effect without a court order if the obligor requests income withholding, the obligor or obligee initiates it through the public authority, or the public authority starts it through its administrative authority under Minnesota Statutes, section 518A.46, subdivision 5. In non-IV-D cases, the obligee can make a written motion to the court. Income withholding will then be implemented if the court finds that previous support has not been paid on a timely, consistent basis or that the obligor has threatened to stop or reduce payments. Minn. Stat. § 518A.53.
Judgment docketing/Real property lien
Minnesota law provides a summary method for docketing a civil judgment against an obligor and allows for increases in the judgment as monthly arrearages accumulate. After this happens, the judgment is a lien on any real property the obligor owns in the county where the judgment was docketed. The lien also attaches to the obligor’s homestead, though it can only be enforced against the homestead by collecting from the proceeds if the property is sold. Registered (Torrens) land requires that a notice of judgment also be filed with the county recorder before the lien is effective. Minn. Stat. § 548.091.
Minnesota law also provides for a child support judgment by operation of law. Any support payment that is not paid becomes a judgment by operation of law (without court intervention) on and after the date it is due and is entitled to full faith and credit in this state and any other state. Minn. Stat. § 548.091, subds. 2 and 3b.
Driver’s license suspension and motor vehicle title liens
An obligor who is behind in support payments in an amount equal to at least three times the monthly support obligation and is not complying with a written payment agreement is subject to (1) loss of his or her driver’s license, and (2) a lien on the obligor’s equity in a motor vehicle worth over $2,000. The obligor can avoid suspension by entering into and complying with a written payment agreement. Minn. Stat. §§ 518A.65; 518A.67; 518A.69.
An obligor whose driver’s license is suspended for nonpayment of support may seek a one-time 90-day limited license. To qualify for a limited license, the obligor must meet certain eligibility requirements and establish that the obligor’s livelihood, attendance at a chemical dependency treatment or counseling program, role as a family homemaker, or attendance at a postsecondary educational institution depends upon the use of the driver’s license. Minn. Stat. §§ 171.186, subd. 4; 171.20, subd. 4; 171.30, subd. 1; 518A.65.
Recreational license suspension
An obligor who is behind in support payments in an amount equal to at least six times the monthly support obligation and is not complying with a written payment agreement (or an obligor who does not comply with a subpoena) is subject to loss of hunting and fishing privileges. Before utilizing this enforcement tool, the court must find that other substantial enforcement mechanisms have been attempted but have proven unsuccessful. Minn. Stat. §§ 518A.68; 518A.69.
Occupational license sanctions
The occupational license of an obligor who fails to make child support payments may be suspended upon the request of the obligee or county. Arrearages must be at least three times the monthly support obligation. The obligor can avoid suspension by entering into and complying with a written payment agreement. Failure to comply with a written payment agreement will result in a suspension. Minn. Stat. §§ 518A.56; 518A.69.
An obligor who is behind in support payments can avoid certain child support enforcement actions, including occupational license sanctions, driver’s and recreational license suspension, and motor vehicle title liens by entering into and complying with a written payment agreement. When proposing or approving payment agreements, the court, child support magistrate, or public authority must consider the obligor’s financial circumstances and consider a graduated payment plan tailored to an obligor’s individual financial circumstances. Minn. Stat. § 518A.69.
Action against employer
If a withholding order is in effect but the employer is not following it, the obligee or county can take action against the employer to require compliance. Minn. Stat. § 518A.53, subd. 5, para. (c). The county can also sanction the employer for noncompliance. Minn. Stat. § 518A.46, subd. 5, para. (a)(5).
Social Security numbers
Federal law requires the state to have procedures to record the Social Security number of an applicant for an occupational license, driver’s license, recreational license, or marriage license, and parties to certain family law matters. 42 U.S.C. § 666 (a)(13); Minn. Stat. §§ 13.69, subd. 1; 97A.482; 171.06, subd. 3; 171.07, subd. 14.
Financial Institution Data Match (FIDM)
FIDM is an enforcement tool that allows the child support agency to match obligors who owe child support arrears to the financial assets the obligors own, such as bank accounts. If an obligor is behind in support payments by at least five times the monthly support obligation, the obligor is not complying with a written payment agreement, and the arrears have been submitted for federal or state tax intercept, the account assets may be seized by a FIDM levy and applied to the child support arrears. Minn. Stat. §§ 13B.06; 552.04; 552.06.
Contempt of court
Contempt of court is another enforcement tool available to the obligee or the county. If the court finds that the obligor refuses to pay a support order he or she is able to pay, the court may impose a fine or conditional jail sentence. Minn. Stat. §§ 518A.72; 588.02.
Tax refunds and credits. The Minnesota Department of Revenue (DOR) has the authority to intercept the tax credit or refund of an obligor who owes child support arrears and forward it to the county or obligee as reimbursement for the support owed. Minn. Stat. §§ 270A.01 to 270A.12; 289A.50, subd. 5.
Reports to credit agencies. By administrative action, DHS reports to credit agencies any obligor who is more than three times the monthly child support obligation in arrears.
The county may try to collect the judgment using traditional creditor’s legal remedies such as levy, execution, and garnishment against any other property the obligor may own that could help pay the arrears, such as a bank account or boat. In some cases, the county may collect money from a person or entity indebted to the obligor. The county may also intercept or seize reemployment insurance, workers’ compensation payments, and lottery winnings. Minn. Stat. §§ 13B.06; 393.07, subd. 9; 518A.46, subd. 5;518A.50, para. (b); 552.06.
The passport application of an obligor who is at least $5,000 in arrears in child support and is not complying with a written payment agreement may be denied.
Publication of names
DHS, in collaboration with the Attorney General’s Office, may make public information on obligors who are not in compliance with child support orders. Minn. Stat. § 518A.74.
Arrearage collection projects
The county can refer cases with arrears that are at least 90 days past due to either a private collection agency or the DOR. The DOR can use the same creditor’s remedies it uses on tax cases for the support arrears collections. Minn. Stat. § 256.9792.
Seek employment orders
The county may seek a court order requiring an unemployed obligor in arrears to seek employment if the obligor is not complying with a payment plan. Minn. Stat. § 518A.64.
Under certain circumstances, obligors who knowingly fail to pay child support can face criminal charges ranging from misdemeanors to felonies. Minn. Stat. § 609.375. It is also a federal crime to willfully fail to pay child support for a child living in another state. The child support agency may refer a case for federal criminal prosecution if the obligor (1) had the ability to pay the support obligation during the period of nonpayment; (2) willfully failed to pay; (3) had a past due support obligation that remained unpaid for at least one year or is in an amount greater than $5,000; and (4) resides in a state other than that of the child’s residence. 28 U.S.C § 228.
How is support enforced if the obligor or obligee lives in another state?
Minnesota has adopted the Uniform Interstate Family Support Act (UIFSA), which provides procedures for interstate support enforcement. The act authorizes Minnesota courts to (1) request assistance from other states to enforce the rights of an obligee living here when the obligor lives in another state, and (2) enforce the obligation of an obligor living here whose children live in another state. Support enforcement authorities and other government agencies have wide latitude in sharing information, both within and between states, for the purpose of tracking down parents who owe child support. Minn. Stat., ch. 518C.
There are many practical difficulties in enforcing a legal obligation against someone who lives in another state, but individuals with this problem may seek help from either a private attorney with experience in interstate enforcement or from the county child support office. While still complicated, recent federal and state law changes have attempted to unify and simplify interstate child support enforcement.
Are there defenses to nonpayment of child support?
Essentially, no. By statute, interference with visitation is expressly not a defense to failure to pay child support. Minn. Stat. § 518.612. Even unemployment or other decrease or loss of income is not a defense. Arrearages will accumulate until the obligor files a legal motion to modify the existing support order or works out some other legally enforceable compromise with the county or obligee.
A modification of a support obligation may not be retroactive except for the time period while a modification motion is pending. Minn. Stat. § 518A.39, subd. 2, para. (e).
In all cases, it is imperative for an obligor to seek a support order to modify, suspend, or terminate the support obligation if the obligor obtains custody of the child. Otherwise, the obligor will continue to owe child support, and any nonpayment will result in the accrual of arrears and interest.
When does a child support order end?
Usually a support order ends when the child turns 18 or completes secondary school, but not later than when the child reaches age 20. However, parents can negotiate a court order that provides for support to continue later, such as through college education. Support can continue indefinitely for a child incapable of self-support because of a physical or mental condition. Minn. Stat. § 518A.26, subd. 5. Parents should be aware that privately negotiated agreements can be altered by the court if the court determines the agreement is not in the best interests of the child.
If the obligor is in arrears in support payments when the child reaches the age of majority, income withholding or other legal and administrative mechanisms to enforce a judgment for arrears can continue until the back payments are complete. Minn. Stat. § 518A.60.
CREDIT: The material from this post has been copied or adopted from Minnesota’s Child Support Laws, An Overview, drafted by the Minnesota House of Representatives Research Department’s legislative analyst, Lrnn Aves.
This post is part of a series of posts on Calculating Child Support in Minnesota.