Section 12: Support orders; enforcement; arrearages; assignment of wages; notice and hearing; order
Section 12. (a) Each judgment or order for support issued pursuant to section 28 of chapter 119 and chapters 207, 208, 209, 209A and 209C, or received, entered or registered pursuant to chapter 209D shall conform to and shall be enforced according to this section. Each such judgment or order for support shall include a provision for immediate withholding of income, as provided in paragraph (6) of subsection (b); provided, however, that such order for income withholding may be suspended, pursuant to subsection (c). Each such judgment or order for support shall also include an order for health care coverage, as provided in paragraph (5) of subsection (b). Each outstanding order for support which is reviewed, modified or otherwise brought before the court pursuant to any of said chapters or pursuant to section eighteen A of chapter two hundred and seventy-three shall be amended so as to conform to and shall thereafter be enforced in accordance with the provisions of this section.
(b)(1) Each judgment or order for support to which this section applies shall be made payable to the IV–D agency on behalf of each obligee who applies for or is a recipient of IV–D services. Until September 30, 1998, if the obligee is not a recipient of public assistance or has not signed an application for IV–D services, the judgment or order if to be paid by withholding of income of the obligor, shall be made payable on behalf of the obligee to an entity designated by the commissioner of revenue or the court unless the obligor and obligee agree that payment shall be made either directly to the obligee or in some other manner. Such entity shall deduct a fee as determined by the commissioner prior to forwarding payments to the obligee.
(2) All judgments and orders of support entered in the commonwealth on or after October 1, 1998, in which support is ordered to be paid by withholding of income of the obligor, shall be made payable to the IV–D agency on behalf of the obligee; but any judgment or order of support which is solely for alimony or spousal support shall be made payable to the obligee.
(3) In all other cases in which support is payable by withholding income of the obligor, including cases not receiving IV–D services, payment of income withholding pursuant to such judgment or order for support shall be paid, on and after October 1, 1998, to the IV–D agency on behalf of the obligee, notwithstanding the payee specified in the order, provided that a party or the employer notifies the IV–D agency of the amount to be withheld, including any amount to be withheld toward payment of arrearages, and provides the IV–D agency with the identifying information required by paragraph (5) of subsection (b) and a copy of the most recent order or notice of income withholding; but any order of support payable by withholding income of the obligor which is solely for alimony or spousal support shall be paid to the obligee.
(4) With respect to any case in which support to be paid by withholding income is or becomes payable to the IV–D agency on behalf of the obligee under this section and such support payment was previously made payable to the obligee or another entity, the IV–D agency upon receipt of the case shall execute an order to make payments under the income withholding order payable to the IV–D agency, and shall so notify the employer, the obligor, and the obligee; provided, however, that if insufficient information identifying the obligee and the obligor has been provided to the IV–D agency, the IV–D agency shall return to the employer or other source of periodic income any payment received and shall direct such employer or other source of periodic income to provide information identifying the obligor and obligee prior to transmitting additional payments to the IV–D agency; and provided further that the IV–D agency shall not be liable to such obligor or obligee for not transmitting the payments to the obligee.
(5) (A) A judgment or order shall include: (i) the name and address of the obligor; (ii) the name, address and federal employer identification number of the obligor's employer; and (iii) such other information as the IV–D agency requires to assist it in collecting support payments. With respect to an order for income withholding made payable to the IV-D agency, the issuing court shall provide to the IV–D agency: (i) a copy of the judgment or order for support and the order for income withholding; (ii) the address of the obligee; (iii) the date of birth of the child; and (iv) such other information as the IV–D agency requires to assist it in collecting support payments; provided, however, that such information need not be included in the order for income withholding.
(B) Each such judgment or order shall also include a provision for health care coverage for the child in accordance with this section and may require the obligor to pay an amount toward the obligee's cost of health care coverage or toward uninsured medical expenses on behalf of the child. The court shall enter an order that requires the obligor or the obligee to provide health care coverage if such coverage is available at reasonable cost and accessible to the child. If the court determines that an order for health care coverage is not in the best interest of the child or creates an undue hardship for the obligor or the obligee, then the court shall enter written findings.
(C) If the child is enrolled in MassHealth, an equivalent program in another state pursuant to 42 U.S.C. 1397aa et seq. or 42 U.S.C. 1396a et seq. or an equivalent program in another state that is substantially similar to the program established in chapter 118E, the court shall order the obligee to maintain such coverage as long as the child remains eligible; provided, however, that the court may also order the obligor to enroll the child in private health insurance if: (i) private health insurance is available to the obligor at reasonable cost and accessible to the child; (ii) enrollment in the insurance is in the best interest of the child; and (iii) enrollment in the insurance will not create an undue hardship for the obligor or the obligee.
(D) If health care coverage pursuant to this section is not available to the obligor or the obligee at the time the order is entered, the court shall order the parties to notify the IV–D agency if such coverage becomes available. For the purposes of this section: (i) health care coverage shall be deemed reasonable in cost if the cost to the party ordered to provide health care coverage does not exceed 5 per cent of the gross income of the party; (ii) health care coverage shall be deemed accessible to the child if covered services are available within 15 miles of the child's primary residence; (iii) health care coverage includes private health insurance available through employment, union affiliation or otherwise, and public health coverage administered by the Title XIX agency; and (iv) private health insurance shall be deemed not available at reasonable cost to an obligor or obligee whose gross income does not exceed 150 per cent of the federal poverty guidelines for the family size or who receives MassHealth on behalf of the obligor, the obligee or the child.
(E) If the IV–D agency is responsible for enforcing the order, the court shall order the obligor and the obligee to notify the IV–D agency of any changes in the availability and terms of health care coverage. If the obligor is required to provide health care coverage for a child of the obligor's through an employment-related health plan and if the IV–D agency has the name and address of the employer, the IV–D agency shall transfer the national medical support notice, as required by Title IV, Part D of the federal Social Security Act, to the employer notifying the employer to enroll the child in a health care plan provided by the employer for which the obligor is eligible. If the obligee is required to provide health care coverage, the IV–D agency may transmit such national medical support notice to the employer of the obligee and the provisions of this section with respect to the notice shall apply to such obligee and such employer. The notice may be transmitted to the employer by any method, including paper, facsimile, magnetic tape or other electronic means.
(6) Each such judgment or order shall include a provision under which a portion of the obligor's income as defined in section 1A, shall be withheld, except as expressly limited by law, in an amount sufficient to comply with the support order. Each such judgment or order shall also include a provision that any income withholding be sufficient to reduce any arrearage of support that accrues under the order or accrued prior to entry of the order by increasing income withholding by twenty-five per cent until such arrearage is paid off. No current order shall be reduced in order to pay off an arrearage.
This section shall not affect the availability of any method for collecting an arrearage. In any case with an outstanding support order under this chapter in which no order of income withholding has been executed, said IV–D agency shall execute an order, by any reasonable means, including by electronic means, to withhold income, without the need for judicial or administrative hearing, and this section shall apply; provided, however, that the IV–D agency shall notify the obligor that the withholding has commenced and of the procedures to follow under section 17 if the obligor wishes to contest such withholding on the grounds that the withholding or the amount withheld is improper due to mistake of fact. If on the basis of mistake of fact, the obligor contests the income withholding or contests the withholding of the employee share of premiums for health care coverage, the employer shall initiate and continue the withholding until the employer receives notice from the IV–D agency, the court or an administrative agency of competent jurisdiction to terminate the income withholding or the withholding of the employee share of premiums for health care coverage.
(c) Any withholding of income shall take effect immediately when the obligor is found in violation or contempt of an order of support. Income withholding shall also take effect immediately, without the necessity of any judicial or administrative hearing, in all other cases, unless the court or the hearing officer finds good cause exists to order that the income withholding be suspended and makes written findings in support of suspension or unless the obligor and the obligee agree in writing that payment shall be made directly to the obligee. Such written findings shall include a determination by the court that immediate income withholding would not be in the best interests of the child and the reasons therefor and, in the case of a modification of a support order, shall include proof of timely payments made in compliance with the existing order. Before the hearing regarding the suspension of such income withholding, the court shall inform the obligor that under the provisions of subsections (d) and (e), such income withholding, even if suspended, will take effect without any further hearing if an arrearage accrues as described in paragraph (1) or (2), and that a hearing will be available as provided in said subsections (d) and (e).
In the event that income withholding is suspended in the first instance, it shall take effect immediately:—
(1) when a total arrearage amounting to the support owing for a fourteen-day period has accrued; or
(2) in cases where payment is to be made once per month, fourteen days after a payment is missed, or, if no payment is missed, fourteen days after an arrearage amounting to one-half the amount of support owing for one month has accrued; or
(3) at the request of the obligor or the obligee.
Income withholding pursuant to this section shall terminate when the underlying support obligation terminates and all arrears are paid. With respect to a case receiving IV–D services, when an obligor changes employers or other source of periodic income, the obligor shall promptly notify his subsequent employer or other source of periodic income of his child support order and the IV–D agency of his subsequent employment or other source of periodic income and within 2 business days of receipt of the information, the IV–D agency shall transfer the income withholding order or the national medical support notice or both to the subsequent employer or other source of periodic income. With respect to a case receiving IV–D services, the IV–D agency shall transfer the income withholding order, the national medical support notice, or both, to the obligor's employer or other source of periodic income within 2 business days of the entry of the obligor's employment information in the wage reporting system as set forth in chapter 62E. With respect to a case receiving IV–D services, if an income withholding order or order for health care coverage is in effect under this section but cannot be executed because the obligor has no employer or other source of periodic income, said agency shall send the income withholding order or national medical support notice or both, together with notice of the provisions of subsection (f), to an employer or other source of periodic income who later employs or pays the obligor as soon as the new such employment or other source of periodic income is ascertained.
(d) With respect to a case receiving IV–D services or where an obligee applies for child support services from the IV–D agency, when the IV–D agency determines on its own information or on account of a claim in writing under the penalties of perjury that an arrearage has accrued, it shall immediately send the notice on income withholding increased by 25 per cent to the obligor's employer or other source of periodic income as specified in subsection (f) and shall send a notice to the obligor that he may, within 15 days from the date the notice is sent submit a request in writing for a hearing as to whether the income withholding should be further suspended. With respect to all other case, an obligee making a claim that an arrearage has accrued shall make the claim in writing under the penalties of perjury to the court that entered the order and the court may order that the withholding be increased by 25 per cent. The notice to the obligor shall also specify the amount to be withheld, and the procedure and grounds for further suspending the income withholding or appealing the amount of any arrearage alleged to be owed. Such notice to the obligor shall set forth that the income withholding order applies to the obligor's subsequent employers or other sources of periodic income and that the obligor is bound to notify said agency immediately when his employment or other source of periodic income changes or be subject to possible punishment for civil contempt of court or other enforcement remedies under this chapter. When the agency ascertains that an obligor has failed to comply with a judgment or order for health care coverage and health care coverage is available to the obligor at reasonable cost and accessible to the child, the IV–D agency shall send notice of the judgment or national medical support notice to the employer or to a provider of health care coverage together with notice of the provisions of subsection (f). The judgment or order shall operate to enroll the child as fully and completely as if the obligor had executed a document authorizing the enrollment and, upon receipt of notice of the judgment or order from the IV–D agency, the employer or provider of health care coverage shall enroll such child, notwithstanding the employee's failure to sign or submit an application for enrollment for health care coverage and without regard to any restrictions on enrollment periods. The employer or provider of health care shall not refuse to enroll the child on the grounds stated in subsection (m). The obligor or obligee may contest or seek a modification of an order for health care coverage on the grounds that the coverage: (i) is no longer available to the obligor at reasonable cost; (ii) is no longer accessible to the child; (iii) is no longer in the best interest of the child; or (iv) creates an undue hardship for the moving party; provided, however, that the moving party shall bear the burden of proving that the coverage: (i) is no longer available to the moving party at reasonable cost; (ii) is no longer accessible to the child; (iii) is no longer in the best interest of the child; or (iv) creates an undue hardship for the moving party; and provided further, that the provider of health care coverage shall maintain coverage for the child under the order pending a modification of the order.
(e)(1) If the obligor contests income withholding, he shall, in a case receiving IV–D services, request an administrative review under section 17, or, in all other cases, seek judicial review from the court that entered the order. If at the hearing the obligor establishes that no arrearage satisfying the requirements of clause (1) or (2) of subsection (c) existed at the time notice was given or at any time thereafter, or that he is not the person owing such arrearage, the court or hearing officer may order that such income withholding order be suspended until such an arrearage does accrue. A suspension shall not be ordered upon any other grounds, including the fact that an arrearage satisfying said clause (1) or (2) does not exist at the time of the hearing if such an arrearage existed at the time when the notice was mailed or any time thereafter.
If the court or hearing officer orders that income withholding be suspended, upon notice to the IV–D agency, said agency shall promptly notify the employer or other source of periodic income.
(2) The obligor may also request a hearing, under the same procedure and with the same notice as set forth in paragraph (1), if he contends that the payment of arrears at the rate of twenty-five per cent of the face amount of the child support order is excessive or that the total arrears owing is incorrect. If it is determined that payment of the arrearage at the rate of twenty-five percent of the support order creates an undue hardship upon the obligor or that the withholding would exceed the maximum amount permitted by the Consumer Credit Protection Act, 15 USC 1673(b), the rate at which such arrearage must be paid shall be reduced to a rate that is fair and reasonable considering the circumstances of the parties and the best interests of the child. If the court or hearing officer determines at the hearing that the total amount of arrears calculated is erroneous, he shall reduce the amount calculated to correct the amount.
(f) The IV–D agency shall send notice of the income withholding order and the national medical support notice to the employer or other source of periodic income at the time required by this section. The notice of income withholding and the national medical support notice sent to the employer or other source of periodic income shall contain notice, of this subsection, and shall also state the amount to be withheld and that such amount shall be made payable to the IV–D agency on behalf of the obligee and sent to the state disbursement unit as provided in section 5 and shall not exceed the limit on the obligor's income set by the Consumer Credit Protection Act, 15 USC 1673(b).
(1) The employer or other source of periodic income may deduct from said earnings or income a sum not exceeding one dollar per pay period as reimbursement for costs incurred, and may submit to said agency one check covering all its employees or recipients of periodic income whose income is withheld along with a statement enumerating the obligation of each employee or recipient of periodic income and amount paid.
(2) The employer may not discipline, suspend or discharge an employee, or refuse to hire any individual because of an income withholding order issued pursuant to this section or because of any obligation such income withholding imposes against the employer. Any employer who violates this section shall be liable in a civil action, action for contempt or other appropriate proceeding to such employee or individual for all wages and employment benefits lost by the employee or individual from the time of the unlawful discipline, suspension, refusal to hire or discharge to the period of reinstatement, and an additional penalty of up to $1,000.
(3)(A) If an employer or other source of periodic income fails to comply with an order of income withholding executed pursuant to this section the court may, on its own motion or upon report of the IV–D agency or other administrative agency of competent jurisdiction, or upon the motion or complaint of any party to the order of income withholding, summon the employer or other source of periodic income to appear in court and show cause why he should not be held in civil contempt for failure to obey said order. Said employer or other source of periodic income shall also be liable to the obligee in a civil action, action for contempt, or other appropriate proceeding for the full amount of the income that the employer or other source of periodic income failed to withhold or remit, and shall also be liable for a civil penalty equal to that amount or in the amount of $500, whichever is greater, payable to the IV–D agency or to the moving or complaining party. A finding by the court, by an administrative agency of competent jurisdiction, or by the IV–D agency that the employer or other source of periodic income has failed or neglected to comply with an income withholding order executed pursuant to this section shall be prima facie evidence of the liability of such employer in such proceeding.
(B) With respect to a case receiving IV–D services, upon a finding by the IV–D agency that the employer or other source of periodic income has failed to withhold, or has withheld and failed to remit, any amount required to be withheld and remitted under this section, the IV–D agency may notify the employer or other source of periodic income of its obligation to withhold and remit pursuant to the income withholding order. Any subsequent failure to withhold and remit after the IV–D agency has sent said notice, or any failure to remit within 30 days an amount that has been withheld, shall result in an assessment by the IV–D agency against the employer or other source of periodic income of the amount subject to withholding and a penalty equal to that amount or in the amount of $500, whichever is greater. Such employer or other source of periodic income shall have 30 days from the date of the assessment to pay the amount due to the IV–D agency under the assessment and the penalty, or to request an administrative hearing by the IV–D agency to review the assessment.
(C) In any action pursuant to subparagraphs (A) or (B), the following defenses may be raised by the entity alleged to have failed to withhold or remit support pursuant to the income withholding order:
(i) said entity withheld and remitted the amount required by the order;
(ii) said entity was not a source of periodic income to the obligor during the period of alleged non-compliance;
(iii) no order to withhold support was in effect during the period of alleged non-compliance; or
(iv) said entity had no notice of an order to withhold support during the period of alleged non-compliance.
(D) Any amount assessed under subparagraph (A) by a court in a case receiving IV–D services, and any amount assessed by the IV–D agency under subparagraph (B), shall be collected and enforced by any means authorized under this chapter for the enforcement and collection of support. Any penalty imposed under this paragraph shall not be credited against the support liability. Any employer or other source of periodic income who contests an assessment confirmed by the IV–D agency after an administrative hearing pursuant to subparagraph (B) may, after exhaustion of administrative remedies, seek judicial review pursuant to section 17 of this chapter.
(4) This order shall have priority over all other orders of assignment, income withholding, attachment, liens, executions and other legal process, from whatever source, notwithstanding any other provision of law.
(5) As provided in subsection (b), the employer or other source of periodic income shall send the amount required by the income withholding order to the IV–D agency within three business days of the date the employee or recipient of periodic income is paid, and shall furnish such identifying information as the IV–D agency may require, including name, telephone number and employer identification number of the employer or other source of income, and the names, addresses, and social security numbers of the obligor and, if known, of the obligee, and the amount of support attributable to each obligor and obligee. With respect to income withholding orders issued by a court or agency of competent jurisdiction of another state and sent pursuant to section 5–501 of chapter 209D, the employer or other source of periodic income shall send the amount required by the income withholding order to the state disbursement unit in such other state and shall comply with the procedural rules governing income withholding for the state where the employee or other recipient of periodic income works or receives such income.
(6) The income withholding shall begin on the first payment of income that occurs more than three days after the employer or other source of periodic income receives notice of the income withholding and shall continue until the employee leaves that employment, the recipient of periodic income no longer receives periodic income from that source, or the employer or other source of periodic income is notified by said agency that the income withholding should be terminated.
(7) With respect to a case receiving IV–D services, if the employee leaves the employment, the employer shall be responsible to notify said IV–D agency of his departure and his subsequent employer, if known, or his subsequent source of periodic income, including pension or retirement payments, if known, prior to the time that the next payment to said agency is due and, if a recipient of periodic income no longer is to receive periodic income from a source of such income, that source shall notify the IV–D agency of the termination of his receipt of periodic income from that source and, if known, his subsequent source of periodic income, prior to the time that the next payment to said agency is due. Any subsequent employer or other source of periodic income of the obligor shall, upon notice of an income withholding order or upon receipt of a national medical support notice, or both, comply with the provisions of this section.
[There is no subsection (g).]
(h) Each obligor making payments to the IV–D agency under this section shall be provided a notice describing the procedure for withholding income, including the factors triggering income withholding under subsection (c), the obligor's duty to report changes in employment, address, and other identifying information as required under section 4(c). Such notice may be provided at the time that the support order is entered.
(i) When the obligor is self-employed, income withholding shall be ordered in compliance with subsection (b) and such self-employed obligor shall be subject to the same penalties provided in this section for failure to comply with income withholding to which any other employer is subject. When income withholding cannot be obtained because the obligor has insufficient periodic income subject to attachment, the court may require that the obligor post a bond in an amount sufficient to secure the obligation of support.
(j) Obligations may also be enforced in accordance with the provisions of section six.
(k) Upon receipt of the national medical support notice or upon application of the employee pursuant to the order for health care coverage, the employer shall enroll the child in the health care plan. The national medical support notice shall have the same effect as an enrollment application signed by the employee and shall operate to enroll the child in the health care plan. The employer shall comply with the requirements of the national medical support notice as set forth in the instructions incorporated into the notice. If health care coverage is provided by the obligor, the employer or the provider of health care coverage shall furnish the obligee with such information as may be necessary for the child to obtain benefits through the plan and shall permit the obligee or, with the approval of the obligee, the provider of medical services to submit claims for covered services without the approval of the obligor. A claim submitted in accordance with this subsection shall be payable, as appropriate, directly to the obligee, to the provider of medical services or, if the individual has assigned the individual's rights to medical support pursuant to Title XIX of the federal Social Security Act, to the division of medical assistance. If the division of medical assistance has been assigned the rights of an individual covered for health benefits from the provider of health care coverage and eligible for medical assistance under said Title XIX, the provider of health care coverage shall apply to the division the same requirements applicable to an agent or assignee of any other individual so covered.
(l) If the employee is eligible for family coverage, the employer and the provider of health care coverage shall permit the employee to enroll, under the coverage, any child who is eligible for such coverage without regard to any enrollment season restrictions. If the employee is enrolled in a family health care plan but fails to make application to obtain coverage of a child, the employer and the provider of health care coverage shall enroll such child under the coverage upon application by such child's other parent, by the division of medical assistance or upon receipt of the national medical support notice from the IV–D agency. An employer or a provider of health care coverage shall not eliminate family coverage for a child enrolled pursuant to this section unless the employer or provider of health care coverage is provided satisfactory written evidence that the health care order is no longer in effect or that the child is or will be enrolled in a comparable plan, effective no later than the effective date that such coverage is eliminated, through another provider of health care coverage or, in the case of an employer, the employer has eliminated family health care coverage for all of its employees. An employer shall withhold from an obligor's compensation the obligor's share, if any, of premiums for health care coverage and shall pay such share of premiums to the provider of health care coverage unless federal regulations promulgated pursuant to Title XIX of the Social Security Act permit the employer to withhold less than the obligor's share of such premiums; provided, however, that the amount so withheld may not exceed the maximum amount permitted to be withheld under the Consumer Credit Protection Act, 15 USC 1673(b). The IV–D agency shall promptly notify the employer when there is no longer an order for medical support in effect.
(m) A provider of health care coverage shall not deny enrollment to a child under the health coverage of the child's parent on the ground that such child was born out of wedlock, that such child is not claimed as a dependent on the parent's federal income tax return or that such child does not reside with the parent or within the area served by the provider of health care coverage or that such child receives benefits or is eligible to receive benefits under any plan administered by the division of medical assistance or by the department of public health. An employer or provider of health care coverage who, upon notice of a health care order, fails without reasonable cause to enroll a child in a health care plan shall be liable in a civil action, action for contempt, or other appropriate proceeding for the full amount of the medical costs incurred and for attorneys' fees. A finding by the IV–D agency or by a court or administrative agency of competent jurisdiction that an employer or provider of health care coverage has failed without reasonable cause to enroll a child in a health care plan shall be prima facie evidence of such liability.