The National View of Child and Spousal Support-Module 4 of 6

Module 4 The National View of Child and Spousal Support

Only state courts have original jurisdiction over domestic relations cases, including cases involving child support and spousal support. Over time, federal and state courts have crystalized this notion into the “domestic relations exception” to federal jurisdiction over family law. However, many aspects of domestic relations law have national and international implications and sets of laws. These are areas like enforcement of support, taxation, social security, retirement accounts, “full faith and credit” issues, and more.

Domestic relations laws that affect the entire country include some federal laws, federal court decisions, “model codes” adopted by states, the Internal Revenue Code, the Code of Federal Regulations, immigration laws, military law, and more. Some of those areas have implications in international law as well.

National and International Approaches to State Support Laws

States have worked together formally and informally to help enforce child and spousal support orders across state borders for more than a century. Governments around the world have also entered into agreements with the United States for mutual enforcement of support orders. We will explore those laws, how they came to be, and how they are enforced.

Model Codes

            The most common way to create consistent state laws enforceable across state borders is through the implementation of model codes.

A model code is a nationally recognized document developed by a private entity for use by state or local jurisdictions in developing their own laws or procedures.[1] These models are written to give guidance to legislatures, bar associations, etc. so that laws of different states on one area of the law can be similar to laws in the same area in other states.

Model codes are developed to try to bring a universal approach to legislation that deals with issues that are national in nature, but which are not subject to federal law for constitutional reasons. They are written by teams of experts in that field of law. These codes propose statutory language to state legislatures that they can adopt in concert with other states. The effect of this type of coordination is a landscape of laws that have virtually the same effect as a federal statute, but which are passed by states and enforced on the state level.

States can pass the version of the model code as written, or they can alter any portion of the model, or they can pass it in part, or they can simply not pass any version of it.

The “private entity” that develops model codes can be a non-profit organization that has a particular political view, like the American Legislative Exchange Council or a neutral organization like the Uniform Law Commission (formerly known as the National Conference of Commissioners on Uniform State Laws), which has created over 300 model codes. Many model codes are also proposed by the American Bar Association.

Model Codes for Support Enforcement

The two primary model codes relating to support enforcement are the Uniform Interstate Family Support Act, which we will call the “Family Support Act,” and the Uniform Child Custody Jurisdiction and Enforcement Act, which we will call the “Custody Enforcement Act.” These model codes create the means for states to develop support orders which can then be enforced in other states.

These Acts come into play when ex-spouses live in two different states. They may also come into play when one party lives in a different country.

Examples of Uniform Nationwide Support Laws

The first model code dedicated to the national enforcement of support orders was the Uniform Desertion and Non-Support Act of 1910. In 1950, the National Conference of Commissioners on Uniform State Laws published the Uniform Reciprocal Enforcement of Support Act. That Act was passed in some form by all 50 states and was amended and revised several times.

That Act had several weaknesses, chief amongst them that it retained the ability of one court to change the orders of another court. That allowed an ex-spouse to easily change location, go to a court in the new location and ask the court in the new location for a change in spousal or child support orders without input from the other party or the “home” court.

To clean that and other issues up, the Commissioners conference published the Family Act in 1992, superseding the previous support model codes. The Family Support Act has been amended several times through the years. Some form of this model code is now the law in all jurisdictions.[2]

Moreover, Congress did not wait around for all states to voluntarily pass this model code. Congress passed the Personal Responsibility and Work Opportunity Act of 1996.[3] One aspect of that law was to pressure all states to adopt the Family Act or risk losing federal funding for child support enforcement.

National Effect of the Family Act

As it currently exists, Family Support Act-based state laws govern the establishment, enforcement, and modification of interstate child and spousal support orders. The act is a form of “long arm jurisdiction” that allows the laws of one state to be enforced in another state. Because state custody and support laws vary widely, this model code sets standards for determining which state’s law will prevail and which court will have continuing and exclusive jurisdiction over a case. Simply, the state where the dependent child or payee is a resident will enforce the support orders of the state of original jurisdiction.

The Family Support Act requires each state to have a central support registry, called an Interstate Central Registry. The long-arm support laws of each state are then built around that registry and other clauses in the Family Support Act.

The Custody Enforcement Act

The Custody Enforcement Act was drafted by the National Conference of Commissioners in 1997 and has been adopted by all but one state. It was intended to compliment and update the Parental Kidnapping Prevention Act of 1981, as well as to update a 1968 version of this model code. It is used by states in conjunction with the Family Act to create an entire structure of multistate support enforcement laws.

This model code makes it more difficult for a parent to move to another state and change jurisdiction to the new state. At the same time, the registration process can ease such a change by allowing the foreign state to modify an order from the home state.

The Family Support Act and Custody Enforcement Act-based laws are complex and differ between states, but they can allow states to:

n  Establish orders for spousal or child support

n  Enforce out-of-state support orders without registration, including wage attachments

n  Register out-of-state support orders for in-state enforcement

n  Modify out-of-state registered support orders

n  Determine parentage, and

n  Assert jurisdiction over non-residents[4]

Federal Enforcement of Child Support Orders

The federal government enforces child support orders across state boundaries under the Child Support Recovery Act of 1992 and the Deadbeat Parents Punishment Act of 1998.[5] These acts are enforced by the Department of Justice and only apply where the parents live in different states. The guidelines for enforcing this law provide that the parties must try to resolve these issues at the state level before the federal government will get involved.

These Acts made the non-payment of child support a federal criminal act in some cases. First, a person who is under court-ordered child support is guilty of a federal misdemeanor if the payor willfully refuses to pay child support to a child who lives in another state, owes back child support for more than one year, or owes more than $5000 in support. A person guilty of this violation is subject to fines and up to six months in prison. Second, a court-ordered payor is guilty of a felony if the support payment is overdue for more than two years or exceeds $10,000. Punishments include fines and up to two years in prison. Third, it is a felony to flee a state and travel to another state or out of the country to avoid paying child support that has been past due for more than one year or exceeds $5000.

The Federal Office of Child Support Enforcement

The federal Office of Child Support Enforcement is a division of the Department of Health and Human Services that oversees the national child support program. It advises and coordinates with state child support agencies for their support services. The office does not have any authority to make or enforce laws or regulations itself.

It serves to help guide agencies, employers, and parents through the complex world of interstate child support enforcement. In particular, the office’s website provides links and contacts for all state child support offices[6] and has numerous resources for anyone involved in child support.

The national child support program currently operates under a strategic 5-year plan. The plan is a collaborative effort among all jurisdictions and the national office. The plan[7] emphasizes five points:

n  Families first

n  Case-specific tools

n  Modern technology

n  Resourceful leadership

n  Evidence-based procedures.

In 2016, the national child support program stated that it collected $33 billion and served 15.6 million children and their families.

Social Security Payments

Social Security payments can be garnished for child support and spousal support.[8] Calculations and the garnishment are based on the state’s garnishment laws, so any court action adjusting or ending the garnishment comes under the state’s laws and not Social Security procedures.

Military Law of Child and Spousal Support

There are over two million people serving in the U.S. military on active and reserve duty.[9] They have the same kinds of domestic relations situations as everyone else, but with some special components. Members of the United States military are subject to several laws and military regulations that are separate from and supersede the rest of the law in this area. The laws in this area require a balance of state and federal law and military procedure.

The laws specific to military members going through and following their divorces are the Uniformed Services Former Spouses Protection Act[10] and the Service Members Civil Relief Act[11]. In addition, each branch of the service has separate sets of regulations governing a service member’s behavior during and after a divorce.[12] A service member’s commanding officer can issue a temporary support order under these regulations even without a court order. The commanding officer can also be contacted if the service member is attempting to duck service of process. Note that Judge Advocate General officers may offer advice to either the service member or the spouse, but not both, and cannot represent either party in divorce court.

Application of Military Law and Regulations to Divorce Cases

All relevant military law and regulations regarding spouses have at their core a requirement for married and divorced military personnel to support their families. This means that the military can punish members who fail to live up to their family obligations through their own regulations, beyond punishments available through civilian civil and criminal procedures. Failure to pay child or spousal support in the military is considered a “service discrediting” form of misconduct and service members to are expected to meet those obligations or be subject to administrative discharge if they fail to address their arrearages.

Military Divorce Jurisdiction

Military divorce jurisdiction is in state court, like all other divorces. However, service members often move so frequently that they will have a permanent residence in one state and be posted in another state, with the occasional added wrinkle of the spouse living in a third state. Domestic court jurisdiction over military members varies by state. State laws and military regulations may allow service members to file divorces in any one of three places: the state where the filing spouse resides; the state where the military member is stationed; or the state where the military member claims legal residency.

This is further complicated when a service member is stationed in another country. Overseas service of process directly on an individual may violate various treaties and some international laws. In those cases, military installations generally have a service member assigned as a process server. In some cases, the base commander can perform that function.

The Service Members Civil Relief Act

The Service Members Civil Relief Act became law in 2003 as an expansion of the Soldiers and Sailors Civil Relief Act of 1940. The law is designed to relieve financial burdens on service members during times of active military service. The Act protects service members against default judgments (including divorces) and allows the service member to apply for a stay of any civil action, including divorce and post-divorce proceedings, for 90 days while deployed on active duty or within 60 days after having been on active duty.

The Uniformed Services Former Spouses Protection Act

The Uniformed Services Former Spouses Protection Act became law in 1982 and has been revised several times — including in 2017. This act forces the military to accept and enforce state court orders regarding divorce, custody, child support and spousal support. Were it not for this act, it would be very difficult to enforce support payments from military personnel because the military would be largely exempt from enforcing the orders of a civilian court, and the large dispersal of military personnel would make them difficult to enforce.

Several clauses of this law benefit recipients of spousal and child support. Most importantly, when determining child support amounts, the service member’s complete income structure is used and categorized as “disposable earnings.” This includes not only salary, but the value of all other military benefits including many kinds of special pay and allowances. These include subsistence allowance, sea pay, basic allowance for quarters, special pay, and many others.

When spousal or child support is ordered, and the payments fall behind for two months or more, the service member’s wages can be garnished, including all these benefits, regardless of state law. The court may also order the payor to carry life insurance enough to cover the support obligation in case of the service member’s death. The military allows “voluntary allotment” for paying spousal and child support but can impose an “involuntary allotment” for child support and for spousal support if there is also child support.

Support Orders and Non-US Citizens

Non-citizens have the same obligations to obey court orders that citizens have, but complications can arise for support obligors who apply for citizenship or who live in another country. Under federal regulations[13], a parent applying for citizenship or naturalization who is under a court order to pay child support must provide evidence showing that he or she is in compliance with that order. A child support obligor who is in arrears may be denied citizenship. An obligor who has deliberately avoided paying child support must be denied citizenship until the arrearages are cleaned up.

Collecting support from a person who lives in another country can be difficult, depending on the treaties in effect (or lack thereof) between the United States and whatever country the obligor parent lives in, and on the obligor’s citizenship. The Hague Child Support Convention has about 36 signatory countries, and the United States processes child support cases with those countries through a clause in the Family Support Act.[14] The United States also has additional agreements with Australia, Canada, Israel and El Salvador for reciprocal child support enforcement.

If the obligor or child custodian lives in a country not subject to those agreements, the only real solution may be to file an action in that country.

Federal courts, including the Supreme Court, have handed down numerous decisions that affect child and spousal support. Many of these decisions have involved penalties for non-payment of obligations and other enforcement actions. We will focus on these in the next module.