Library: Policy

340:25-5-140. Past support

Revised 10-20-2021

(a) Legal authority. Oklahoma Human Services, Child Support Services (CSS) takes appropriate action to collect support and secure compliance with support orders. ■ 1 & 2

(1) When a support order does not specify an effective date, a payment is due on the first day of the month following the child support order's entry and on the first day of each month thereafter except when another state's law governs the due date.

(2) CSS determines past-due support and support for a prior period based on information in available records from courts, Title IV-D and other public and private agencies, the custodial persons (CPs), the noncustodial parents (NCPs), and others.

(3) CSS may require sworn written statements and supporting documents from CPs, NCPs, and others pertaining to support payments. The primary legal foundations for determination and collection of past-due support and support for a prior period are applicable provisions of: ■ 2

(A) Part D of Subchapter IV of Chapter 7 of Title 42 of the United States Code;

(B) Section 1738B of Title 28 of the United States Code (28 U.S.C. § 1738B);

(D) Sections 83 and 7700-636 of Title 10 of the Oklahoma Statutes (10 O.S. §§ 83 and 7700-636), Chapters 3 and 21 of Title 12, Title 43, and 56 O.S. §§ 231 through 240.23.

(b) Definitions. The following words and terms, when used in this Section shall have the following meanings unless the context clearly indicates otherwise:

(1) "Abate" means, per 43 O.S. Section 118I, an NCP does not owe the child support obligation when incarcerated for 180-consecutive days. Upon eligibility, child support is no longer owed effective the first day of the month following the entry date into the correctional facility or jail and does not accrue for the duration of the incarceration.

(2) "Incarceration" means, per 43 O.S. Section 118I, an obligor is in custody on a fulltime basis in a local, state or federal correctional facility. Incarceration shall not include probation, parole, work release or any other detention alternative program that allows the obligor to be gainfully employed.

(c) Judgment payment. Per 43 O.S. § 137, the monthly payment schedule on past support may not exceed three years unless specific findings of fact supporting the action are made. CSS considers a three-year payment schedule to be unjust, unreasonable, inequitable, or inappropriate when CSS has evidence that the NCP cannot comply with the payment plan. CSS requests a monthly payment schedule that may exceed three years in accordance with the best evidence available, including the NCP's earning records, past job history, earning ability based on education and training, and mental or physical incapacities. CSS also considers an NCP's other child support obligations and total arrears.

(d) Enforcement.

(1) CSS takes action to enforce past-due support and support for a prior period, per Oklahoma Administrative Code (OAC) 340:25-5, Part 23. • 1

(2) CSS collects amounts from the original child support order date, including any judgments for support for a prior period, and does not limit collection of past-due child support to amounts accruing from the time a case is opened or reopened. • 2

(3) When CSS receives a new case with an existing order, or when a previously closed case reopens and has an existing order, CSS does not calculate a past-due support balance, or take action to enforce past-due support, until 30-calendar days from the mailing date of the notice of case letter and affidavit of payments document to the NCP. This does not preclude initiating an income assignment to collect current support. • 2

(4) Past-due child support remains due to the CP with whom a child resided during the month the past support was due.

(5) When CSS takes action to enforce past-due support and support for a prior period for a Servicemember's child, CSS applies the provisions of the Servicemembers Civil Relief Act, codified in 50 U.S.C. §§ 3901 through 4043. • 4

(e) Settlement of past support.

(1) Settlements of past support may include:

(A) an NCP's lump sum partial payment or a series of payments made toward the total amount of past support;

(B) an agreement for the NCP to pay a specified number of current child support payments in the future; and

(2) Settlements of past support must be memorialized in a court order and the CP must sign the court order when the past support is owed to the CP. • 6

(3) Per 43 O.S. § 112, CSS:

(A) acknowledges the rights of the CP and NCP to mutually agree to waive with approval of the court, all or a portion of the past child support due to the CP; or

(B) may negotiate the right to collect all or part of past support owed to Oklahoma. • 5

(f) Annual notice. CSS uses the annual notice to the NCP parent, per 56 O.S. § 237A to confirm the amount of past-due support and remaining balances on previously confirmed judgments. Past-due support and remaining balances on judgments for support for a prior period may also be confirmed during other enforcement actions, per OAC 340:25-5, Part 23. • 6

(g) Death of CP.

(1) When the CP dies, CSS issues child support payments for past due support to:

(A) the decedent's estate, when the estate's administrator notifies CSS in writing; or

(B) any state owed past due support, per OAC 340:25-5-351.

(2) Except as provided in (1) of this subsection, CSS refunds payments to the:

(A) payor, when the payor's address is known;

(B) NCP parent when the payor's address is unknown, or payments are returned due to the inability to distribute.

(3) CSS does not file a forced probate court action to determine heirs and distribute past support to heirs.

(h) Jurisdiction. When an Oklahoma tribunal has personal and subject matter jurisdiction and can obtain service of process on the NCP, CSS uses the annual notice, notice of support debt, contempt, or other appropriate proceedings to determine past support and interest before requesting another state's tribunal to enforce the child support orders.

(i) Incarcerated NCP. Per 43 O.S. § 118I, beginning November 1, 2021, there is a rebuttable presumption that an NCP who is incarcerated for a period of 180-consecutive days is unable to pay child support. When a payment is made during incarceration, the presumed ability to pay child support may be rebutted for that payment period. CSS makes a final determination whether the order is abated. • 7

INSTRUCTIONS TO STAFF 340:25-5-140

Revised 9-15-22

1. (a) In all cases, Oklahoma Human Services, Child Support Services (CSS) staff requests the court set a periodic payment plan to collect past support.

(b) When the court determines a judgment at an amount different from the amount shown on the CSS arrearage computation presented to the court, CSS staff updates the court's:

(1) judgment amount on the Oklahoma Support Information System (OSIS) Obligation screen; and

(2) decision and finding of fact, when included in the court order, on the OSIS Case Log (CSLOG) screen.

2. (a) Arrears are calculated and added to the case without waiting 30-calendar days, when:

(1) there is no address for the noncustodial parent (NCP) and the custodial person (CP) returned an affidavit of payments;

(2) the NCP responds and does not dispute arrears; or

(3) both parties respond within 30-calendar days and there is no dispute as to the arrears amount.

(b) CSS staff files an action to determine arrears, when:

(1) both parties respond and there is a dispute as to the arrears amount; and

(2) the NCP requests credit for non-cash support and the CP does not agree. CSS staff files the action without including credit for the non-cash support.

(c) When the NCP fails to return the affidavit of payments, arrears are calculated and added to the case after 30-calendar days.

(d) When only the NCP returns the affidavit of payments, CSS staff:

(1) contacts the CP to verify the information the NCP provides;

(2) enforces current support only from the date the obligation is built, until arrears are determined;

(3) reviews the case for noncooperation and case closure, when appropriate; and

(4) files an action to determine arrears and serves the CP, per Oklahoma Administrative Code (OAC) 340:25-5-190.

(e) When neither party returns the payment affidavits, CSS staff does not calculate or add arrears to the case and enforces current support only from the date the obligation is built. CSS staff requests arrears be reserved for further court determination.

3. (a) When requesting a monthly payment schedule on past support, CSS staff reviews available information that may include the following sources to determine the NCP's ability to pay:

(1) OSIS screens, such as FCRL and OWL;

(2) Oklahoma Wage Report, available from the Oklahoma Employment Security Commission website at https://www.ok.gov/oesc_web/index.html; and

(3) other sources as appropriate.

(b) When the payment schedule exceeds three years, CSS documents in the court order that a three-year payment schedule is unreasonable or not in the child(ren)'s best interests.

4. (a) CSS staff follows the Servicemembers Civil Relief Act (SCRA) Guide, on Quest, for procedures regarding:

(1) waivers of rights and protection, per SCRA;

(2) appearance in court actions;

(3) stays of court; and

(4) default orders.

(b) When one of the parties to the case is in default, CSS staff confirms the defaulting party's military status on the SCRA website, https://scra.dmdc.osd.mil/scra/#/home, and files the default affidavit with the court, per Sections 3901 through 4043 of Title 50 of the United States Code.

5. Settlement of past support. CSS staff includes the settlement terms, including any waivers of past support, in the court order. The district office CSS state's attorneys must approve all settlements of past support.

(1) Past support owed to Oklahoma. Payment matching settlements for past support must be approved by the state’s attorney and memorialized in a court order. CSS staff follow the Arrears Reduction Campaign (ARC) Training Guide, located in Quest, when determining settlement criteria, finance adjustments, and ARC payment tracking. When there is a settlement of past support owed to Oklahoma, the Unreimbursed Assistance balance is reduced by the amount of the assigned arrears being compromised. This provision does not apply in instances where the CP has multiple children on different child support cases.

(2) Past support owed to the CP. CSS staff drafts the court order with language that states the CP makes the waiver knowingly, voluntarily, and without coercion, and with the understanding that the CP may not make a claim for the waived child support amounts in the future.

6. When initiating an enforcement action, CSS staff reviews the case to determine if the current support obligation is in accordance with the child support guidelines and whether to initiate a modification of the current support obligation, per OAC 340:25-5-198.2.

7. (a) When a formerly incarcerated NCP is in a work release program where a majority of earnings are required to participate in the program, CSS does not consider that program as gainful employment. The NCP does not have the ability to pay child support, and therefore CSS staff requests the court modify the order using actual income minus the cost of room and board.

(b) CSS staff follows the Quest article for instruction on updating the automated system to abate child support orders.

(c) When a payment is received while an NCP is incarcerated, CSS staff determines whether the NCP has the ability to regularly pay child support. Continued abatement is appropriate when a payment is from a source not ongoing and regular, such as a tax intercept or payments from a third party, including a relative or friend.

(d) Payments received while child support is abated are credited to arrearages.